be admitted sufficient causes to remand persons to prison To those Objections made by the Prisoners Council against the Retorn as too general 1. It hath been said That Institutum est quod non inquiratur de discretione Judicis 2. That the Court of Sessions in London is not to be look'd on as an inferiour Court having all the Judges Commissioners that the Court having heard the Evidence it must be credited that the Evidence given to the Iury of the Fact was clear and not to be doubted As for any such Institution pretended I know no such nor believe any such as it was applyed to the present cause but taking it in another and in the true sense I admit it for truth that is when the King hath constituted any man a Iudge under him his ability parts fitness for his place are not to be reflected on censured defamed or vilified by any other person being allowed and stampt with the Kings Approbation to whom only it belongs to judge of the fitness of his Ministers And such scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Magnatum 2 R. 2. c. 5. Nor must we upon supposition only 2 R. 2. c. 5. either admit Judges deficient in their Office for so they should never do any thing right nor on the other side must we admit them unerring in their places for so they should never do any thing wrong And in that sense the saying concerns not the present Case But if any man thinks that a person concern'd in Interest by the Iudgment Action or Authority exercis'd upon his person or fortunes by a Judge must submit in all or any of these to the implyed discretion and unerringness of his Judge without seeking such redress as the Law allows him it is a perswasion against common Reason the received Law and usage both of this Kingdome and almost all others If a Court Inferiour or Superiour hath given a false or erroneous Iudgment is any thing more frequent than to reverse such Iudgments by Writs of False Judgment of Error or Appeals according to the course of the Kingdome If they have given corrupt and dishonest Iudgments they have in all Ages been complained of to the King in the Starr-Chamber or to the Parliament Andrew Horne in his Mirror of Justices Hornes Mirror f. 296. mentions many Judges punisht by King Alfred before the Conquest for corrupt Iudgments and their particular Names and Offences which could not be had but from the Records of those times Our Stories mention many punisht in the time of Edward the First our Parliament Rolls of Edward the Third's time of Richard the Second's Time for the pernicious Resolutions given at Nottingham Castle afford Examples of this kind In latter times the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First question'd and the particular Judges impeacht These Instances are obvious and therefore I but mention them In cases of retorns too general upon Writs of Habeas Corpus of many I could urge I will instance in two only One Astwick brought by Habeas Corpus to the Kings Bench 9 El. Moore f. 837. was retorn'd to be committed per Mandatum Nicholai Bacon Militis domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar facti and was presently bail'd 13 Jac. Moore f. 839. One Apsley Prisoner in the Fleet upon a Habeas Corpus was retorn'd to be committed per considerationem Curiae Cancellar pro contemptu eidem Curiae illato and upon this retorn set at liberty In both these Cases no inquiry was made or consideration had whether the Contempts were to the Law Court or equitable Court of Chancery either was alike to the Judges lest any man should think a difference might arise thence The reason of discharging the Prisoners upon those retorns was the generality of them being for Contempts to the Court but no particular of the Contempt exprest whereby the Kings Bench could judge whether it were a cause for commitment or not And was it not as supposeable and as much to be credited That the Lord Keeper and Court of Chancery did well understand what was a Contempt deserving commitment as it is now to be credited that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions and therefore it needed not to be reveal'd to us upon the retorn Hence it is apparent That the Commitment and Retorn pursuing it being in it self too general and uncertain we ought not implicitly to think the Commitment was re vera for cause particular and sufficient enough because it was the Act of the Court of Sessions And as to the other part That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer because all the Judges are commission'd here which is true but few are there at the same time and as I have heard when this Tryal was none of them were present However persons of great quality are in the Commissions of Oyer and Terminer through the Shires of the Kingdom and always some of the Judges nor doth one Commission of Oyer and Terminer differ in its Essence Nature and Power from another if they be general Commissions but all differ in the Accidents of the Commissioners which makes no alteration in their actings in the eye of Law Another fault in the retorn is That the Jurors are not said to have acquitted the persons indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest against the persons indicted for how manifest soever the Evidence was if it were not manifest to them and that they believ'd it such it was not a finable fault nor deserving imprisonment upon which difference the Law of punishing Jurors for false Verdicts principally depends A passage in Bracton is remarkable to this purpose concerning Attainting Inquests Committit Jurator perjurium propter falsum Sacramentum Bracton l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit si autem Sacramentum fatuum fuerit licet falsum tamen non committit perjurium licet re vera res aliter se habeat quam juraverat quia jurat secundum conscientiam eo quod non vadit contra mentem Sunt quidam qui verum dicunt mentiendo sed se pejerant quia contra mentem vadunt The same words and upon the same occasion Fleta l. 5. c. 22 f. 336. n. 9. are in effect in Fleta Committit enim Jurator perjurium quandoque propter falsum Sacramentum ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum and lest any should think that these passages are to be
Liegeance and Obedience of the King of England are Aliens born in respect of the time of their birth The time of his birth is chiefly to be considered for he cannot be a Subject born of one Kingdom that was born under the Liegeance of a King of another Kingdom albeit afterwards one Kingdom descend to the King of the other Therefore Ramsey being not under the Liegeance of the King of England at the time of his birth must still continue an Alien though he were naturalized in Ireland Notwithstanding all this it may be urg'd A person naturalized in England is the same as if he had been born in England and a person naturalized in Ireland is the same as if he had been born in Ireland But a person born in Ireland is the same as if he had been Obj. 1 born or naturalized in England Therefore a person naturalized in Ireland is the same as if he had been born or naturalized in England This seems subtile and concluding Answ For Answer I say That the same Syllogism may be made of a person naturalized in Scotland after the Vnion viz. A person naturalized in England is the same with a person born in England and a person naturalized in Scotland after the Vnion is the same with a person born in Scotland after the Vnion But a person born in Scotland after the Union is the same with a person born or naturalized in England Therefore a person naturalized in Scotland after the Union is the same with a person born or naturalized in England Yet it is agreed That a person naturalized in Scotland since the Union is no other than an Alien in England Therefore the same Conclusion should be made of one naturalized in Ireland To differ these two Cases it may be said That the naturalizing Obj. 2 of a person in Scotland can never appear to England because we cannot write to Scotland to certifie the Act of Naturalizing as we may to Ireland out of the Chancery and as was done in the present Case in question as by the Record appears This is a difference but not to the purpose and then it is the same as no difference For I will ask by way of Supposition Admit an Act of Parliament were made in England for clearing all Questions of this kind That all persons inheritable in any Dominion whatsoever whereof the King of England was King whether naturalized or Subjects born should be no Aliens in England it were then evident by the Law That a naturalized Subject of Scotland were no Alien in England yet the same Question would then remain as now doth How he should appear to be naturalized because the Chancery could not write to Scotland as it can to Ireland to certifie the Act of Naturalizing Answ 1 The fallacy of the Syllogism consists in this It is true that a person naturalized in Ireland is the same with a person born in Ireland that is by the Law of Ireland But when you assume That a person born in Ireland is the same with a person born or naturalized in England that is not by the Law of Ireland but by the Law of England And then the Syllogism will have four terms in it and conclude nothing Answ 2.3 But to answer the difference taken there are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari or any other ordinary Writ 42 E. 3. f. 2. b. An Act of Parliament of Scotland may be evidence as a Sentence of Divorce or Deprivation and Forraign Laws for raising or abasing Mony or Customes upon accompt between Merchants but not as Records In the Case of the Lord Beaumond 42 E. 3. a Question grew Whether one born in Ross in Scotland were within the Kings Liegeance because part of Scotland then was and part not in his Liegeance the Court knew not how to proceed until Thorpe gave this Rule That doubtless the King had a Roll what parts of Scotland were in his Liegeance what not upon the Treaty or Conclusion made that therefore they must address themselves to the King to have that certified The like may now happen of Virginia Surenam or other places part of which are in the Kings Liegeance part not So the King hath or may have Rolls of all naturalized Subjects and upon petition to him where the occasions require it may cause the matter in his name to be certified The like may happen upon emergent Questions upon Leagues or Treaties to which there is no common access but by the Kings permission For illustration a feign'd Case is as good as a Case in fact Suppose a Law in Ireland 5 El. c. 4. f. 957 like that of 5. of the Queen That no man should set up Shop in Dublin unless he had serv'd as an Apprentice to the Trade for Seven years and suppose a Law in England That whosoever had served Seven years as an Apprentice in Dublin might set up Shop in London If by a particular Act of Parliament in Ireland J. S. be enabled to set up Shop in Dublin as if he had serv'd an Apprentiship for Seven years by this fiction he is enabled in Ireland to set up but not in London unless he have really served for Seven years as the Law in England requires Considerations That an Act of Parliament of Ireland should so operate as to effect a thing which could not by the Laws of England be done without an Act of Parliament in England regularly seems so strange that it is suppos'd an Act of Parliament of England did first impower the doing of it though it be not extant by an Act of Parliament The Argument then is 1. A man is naturalized in Ireland and thereby no Alien in England which could not lawfully be done without an Act of Parliament in England to impower the doing it Which in effect is to say a thing was done which could not lawfully be done without an Act of Parliament to warrant it Ergo it being done there was an Act of Parliament to warrant it 2. This Supposition seems rather true because other things relating to Ireland and admitted to be Law could not be but by Act of Parliament in England yet no such Act is extant that is that a Writ of Error lies in the Kings Bench to reverse a Judgment given in the Kings Bench in Ireland 3. That this must be by Act of Parliament not by Common Lew because such a Writ did not lye in Wales or Calais at Common Law to reverse an Error there Still the Argument is no better then before Some things are of known Law through many successions of Ages which could not commence without an Act of Parliament which is not extant Therefore a thing wholly new not warranted by any Testimony of former time because it cannot be lawful without an Act of Parliament must be suppos'd without other proof to be lawful by an Act of Parliament If the lawfulness of any
thing be in question suppose the Laws of Ireland were made the Laws of England by Act of Parliament here only Two were material to this Question 1. That a Postnatus of a Forraign Dominion of the Kings should be no Alien the Law is so in Ireland 2. That persons naturalized in England are naturalized for all the Dominions belonging to England if the Law were so in Ireland it follows not That one naturalized there must be naturalized in England thereby for England is not a Dominion belonging to Ireland but è contrario Fitz. Assise pla 382.18 E. 2 A Writ of Error lies to reverse a Iudgment in any Dominions belonging to England Breve Domini Regis non currit in Wallia is not to be intended of a Writ of Error but of such Writs as related to Tryals by Juries those never did run in Forraign Dominions that most commonly were governed by different Laws Error of a Judgment in Assize of Gower's Land in B. R. 18 E. 2. 21. H. 7. f. 31. b. A Writ of Non molestando issued out of the Chancery to the Mayor of Calais retornable in the Kings Bench and by the whole Court agreed That there are divers Presidents of Writs of Error to reverse Iudgments given in Calais though it was Objected They were governed by the Civil Law 7. Rep. f. 20. a. Calvins Case And Sir Edward Coke cites a Case of a Writ directed to the Mayor of Burdeaux a Town in Gascoigny and takes the difference between Mandatory Writs which issued to all the Dominions and Writs of ordinary remedy relating to Tryals in the Kingdom 7 Rep. Calvins Case f. 18. a. And speaking of Ireland among other things he saith That albeit no Reservation were in King John's Charter yet by Judgment of Law a Writ of Error did lye in the Kings Bench of England of an Erroneous Judgment in the Kings Bench in Ireland A Writ of Error lies not therefore to reverse a Iudgment in Ireland by Special Act of Parliament for it lies at Common Law to reverse Iudgments in any Inferior Dominions and if it did not Inferior and Provincial Governments as Ireland is might make what Laws they pleas'd for Iudgments are Laws when not to be revers'd Pla. Parl. 21 E. 1. f. 152 157. Magdulph appeal'd from the Court and Iudgment of the King of Scots before King Edward the First Ut Superiori Domino Scotiae And by the Case in 2 R. 3. f. 12. all the Iudges there agree 2 R. 3. f. 12. assembled in the Exchequer Chamber That a Writ of Error lay to reverse Iudgments in Ireland and that Ireland was subject as Calais Gascoigne and Guyen who were therefore subject as Ireland And therefore a Writ of Error would there lye as in Ireland Another Objection subtile enough is That if naturalizing Obj. 3 in Ireland which makes a man as born there shall not make him likewise as born that is no Alien in England That then naturalizing in England should not make a man no Alien in Ireland especially without naming Ireland and the same may be said That one denizen'd in England should not be so in Ireland Answ The Inference is not right in form nor true The Answer is The people of England now do and always did consist of Native Persons Naturaliz'd Persons and Denizen'd Persons and no people of what consistence soever they be can be Aliens to that they have conquer'd by Arms or otherwise subjected to themselves for it is a contradiction to be a stranger to that which is a mans own and against common reason and publique practise Therefore neither Natives or Persons Naturaliz'd or denizen'd of England or their Successors can ever be Aliens in Ireland which they conquer'd and subjected And though this is De Jure Belli Gentium observe what is said and truly by Sir Edward Coke in Calvin's Case in pursuance of other things said concerning Ireland In the Conquest of a Christian Kingdom 7. Rep. Calvins C. f. 18. a. as well those that served in Warr at the Conquest as those that remain'd at home for the Safety and Peace of their Country and other the Kings Subjects as well Antenati as Postnati are capable of Lands in the Kingdom or Country conquer'd and may maintain any real Action and have the like Priviledges there as they may have in England Another Objection hath been That if a person naturaliz'd in Obj. 4 Ireland and so the Kings natural Subject shall be an Alien here then if such person commit Treason beyond the Seas where no local Liegeance is to the King he cannot be tryed here for Treason contra ligeantiae suae debitum 26 H. 8. c. 13. 33 H. 8. c. 23. 35 H. 8. c. 2. Treason by an Irish man in Ireland or elsewhere may be tryed in England by those Statutes 33 El. Andersons Rep. f. 262. b. Orurks Case Calvins Case f. 23. a. by the Statute of 26 H. 8. or 35 H. 8. or any other Statute to that purpose 1. To that I answer That his Tryal must be as it would have been before those Laws made or as if those stood now repeal'd 2. His Tryal shall be in such case as the Tryal of a person naturalized in Scotland after the Union who is the Kings Subject but an Alien in England Ireland Though Ireland have its own Parliament yet is it not absolute sui juris for if it were England had no power over it and it were as free after Conquest and Subjection by England as before That it is a conquer'd Kingdom is not doubted but admitted in Calvin's Case several times And by an Act of Parliament of Ireland Stat. Hib. 11 12. 13 Jac. c. 5. appears in express words Whereas in former times after the Conquest of this Realm by his Majesties most Royal Progenitors Kings of England c. What things the Parliament of Ireland cannot do 1. It cannot Alien it self or any part of it self from being under the Dominion of England nor change its Subjection 2. It cannot make it self not subject to the Laws of and subordinate to the Parliament of England 3. It cannot change the Law of having Judgments there given revers'd for Error in England and others might be named 4. It cannot dispose the Crown of Ireland to the King of Englands second Son or any other but to the King of England Laws made in the Parliament of England binding Ireland A Law concerning the Homage of Parceners 14 H. 3. called Statutum Hiberniae A Statute at Nottingham 17 E. 1. called Ordinatio pro Statu Hiberniae Laws for Ireland made by E. 3. Pat. Rol. 5 E. 3. pars 1. m. 29. pla Parl. f. 586 per advisamentum Concilii nostri in ultimo Parliamento nostro apud Westm tento An Act that no Arch-bishop Bishop or Prior should be chosen 4 H. 5. c. 6. who were Irish nor come to Parliaments with Irish Attendants The late Acts
Ne Exeat Regnum de Leproso amovendo de Apostata Capiendo ad quod damnum and Writs to call persons thence as hath been done before they had Burgesses to the Parliament of England And Writs of Error into all Dominions belonging to England lye upon the ultimate Iudgments there given into the Kings Courts of England to reverse Judgments or affirm which is the only Writ which concerns Right and Property between the Subjects that lies The Reasons are First for that without such Writ the Law appointed or permitted to such inferiour Dominion might be insensibly changed within it self without the assent of the Dominion Superiour Secondly Judgments might be then given to the disadvantage or lessening of the Superiority which cannot be reasonable or to make the Superiority to be only of the King not of the Crown of England as King James once would have it in the Case of Ireland ex relatione J. Selden mihi whom King James consulted in this Question The practice hath always been accordingly as is familiarly known by reversal or affirmance of Judgments given in the Kings Bench in Ireland in the Kings Bench here which is enough alone to prove the Law to be so to other subordinate Dominions 21 H. 7. f. 3. And it is as clear That Writs of Error did lye in the Kings Bench to reverse Judgments in Calais and the reason is alike per Curiam for which were divers Presidents This being the state of Wales when it first became an Accession to the Dominion of England under E. 1. and when it was far from the Jurisdiction of the Courts of Justice in England as before it was added to the Dominion of the Crown of England And as other Dominions added to it were 7 H. 4. f. 14. it was questioned only Whether a Protection quia moratur in obsequio nostro in Wallia were good because saith the Book it is within the Realm of England it may be as in the Case of Bastardy the Husband being infra quatuor maria which doubtless was the Isle of Brittain so the Primacy of Bishops in Scotland and Wales was that of England Qu. about this but that gives no Jurisdiction to the Courts There were two ways by which alteration might be wrought The first by Act of Parliament in England making Laws to change either the Laws or Jurisdictions of Wales or both The second by Alterations made in the Laws formerly by him established by E. 1. himself and perhaps by his Successors Kings of England without Parliament by a Clause contained in the Close of that Statute or Ordinance called Statutum Walliae in these words Et ideo vobis Mandamus quod premissa de caetero in omnibus observetis ita tantum quod quotiescunque quandocunque ubicunque nobis placuerit possimus predicta Statuta eorum partes singulas declarare interpretari addere sive diminuere pro nostrae libito voluntatis prout securitati nostrae terrae nostrae predictae viderimus expediri This seems to extend but to the person of E. 1. and not to his Successors and however no such change was made by Him or his Successors But the first remarkable Alteration made seems to have been by Act of Parliament and probably in the time of E. 1. who reigned long after the Statute of Wales but the Act it self is no where extant that I could learn But great Evidence that such there was which in some measure gave a Jurisdiction to the Kings Courts of England in Wales not generally but over the Lordships Marchers there This appears clearly by a Case Fitz. Ass 18 E. 2. pl. 382. not much noted nor cited by any that I know to this purpose being out of the printed Year-Books but printed by Fitz-herbert out of the Reports he had of E. 2. as he had of E. 1. and H. 3. all which we want wholly though some Copies are extant of E. 2. which Case is the only light that I know to clear the Question in hand An Assise of Novel Disseisin was brought against C. de libero tenemento in Gowre and the Writ was directed to the Sheriff of Glocester and the Plaint was made of two Commots which is mis-printed Commons and comprehends all Gouers-land now part of the County of Glamorgan by 27 H. 8. but was not so then the Assise past against the Tenant before the Iustice assigned to take Assises in the Marches of Wales The Tenant brought his Writ of Error and Assignes for Error 1. That the Writ was directed to the Sheriff of Glocester and the Land put in view was in Wales 2 That the Land was out of the Power and Bayliwick of the Sheriff of Glocester 3 That the Assise ought to be taken in the County where the Land lies and that Goures-land was in no County 4 That the Writ was de libero tenemento in villa sive Hamletto de Gouerse and Gouer was no Village or Hamlet but an entire Country consisting of two Commots To these Errors assigned Scroope then Chief Justice made Answer 1. That Gower is a great Barony in the Marches of Wales and That every Barony of the Marches hath a Chancellor and its own Writs whereby one Tenant wronged by another may be righted But when the Lord is outed of his intire Barony he can have no remedy by his own Writ for he is outed of all his Jurisdiction And it is repugnant to demand Iustice of him whose Iurisdiction is questioned that is to give it ut mihi videtur That therefore it was ordained by Parliament when the Baron or Marcher is outed of his Barony in the Marches of Wales he ought to go to the King for Remedy and have a Writ in the Kings Chancery directed to the Sheriff of the next English County and the Sheriff of Glocester served the Writ as being the next English Sheriff This being the most material the other Errors were also answered and the Judgment was affirmed From this Case we may learn and from no other as I believe at least with so much clearness That the Summons of Inhabitants in Wales and the tryal of an Issue there arising should be by the Sheriff of and in the next adjoyning English County was first ordained by Parliament though the Act be not extant now nor is it conceived how it should be otherwise it being an empty Opinion that it was by the Common Law as is touched in several Books who knew the practice but were strangers to the reasons of it For if the Law had been that an Issue arising out of the Jurisdiction of the Courts of England should be tryed in that County of England next to the place where the Issue did arise not only any Issue arising in any the Dominions of England out of the Realm might be tryed in England by that rule but any Issue arising in any Forreign parts as France Holland Scotland or elsewhere that were not of the Dominions of England might pari
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
not first discover that the Verdicts of Juries were many times not according to the Judges opinion and liking But the Reasons are I conceive most clear That the Judge could not nor can Fine and Imprison the Jury in such Cases Without a Fact agreed it is as impossible for a Judge or any other to know the Law relating to that Fact or direct concerning it as to know an Accident that hath no Subject Hence it follows That the Judge can never direct what the Law is in any matter controverted without first knowing the Fact and then it follows That without his previous knowledge of the Fact the Jury cannot go against his Direction in Law for he could not direct But the Judge quà Judge cannot know the Fact possibly but from the Evidence which the Jury have but as will appear he can never know what Evidence the Jury have and consequently he cannot know the matter of Fact nor punish the Jury for going against their Evidence when he cannot know what their Evidence is It is true if the Jury were to have no other Evidence for the Fact but what is depos'd in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the result from the Evidence as well as two Judges may which often happens But the Evidence which the Jury have of the Fact is much other than that For 1. Being return'd of the Vicinage whence the cause of Action ariseth the Law supposeth them thence to have sufficient knowledge to try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own personal knowledge by which they may be assur'd and sometimes are that what is depos'd in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath learn'd in Court and perhaps by false Depositions and consequently knows nothing 3 The Jury may know the Witnesses to be stigmatiz'd and infamous which may be unknown to the parties and consequently to the Court. 4. In many Cases the Jury are to have View necessarily in many by consent for their better information to this Evidence likewise the Judge is a stranger 5. If they do follow his direction they may be attainted and the Iudgment revers'd for doing that which if they had not done they should have been fined and imprisoned by the Judge which is unreasonable 6. If they do not follow his direction and be therefore fined yet they may be attainted and so doubly punisht by distinct Iudicatures for the same offence which the Common Law admits not Chevin and Paramours Case 3 El. Dyer 201. a. n. 63. A Fine revers'd in Banco Regis for Infancy per inspectionem per testimonium del 4. fide dignorum After upon Examination of divers Witnesses in Chancery the suppos'd Infant was prov'd to be of Age tempore finis levati which Testimonies were exemplified and given in Evidence after in Communi Banco in a Writ of Entry in the quibus there brought And though it was the Opinion of the Court That those Testimonies were of no force against the Iudgment in the Kings Bench The Progress in this Writ of Right till Judgment for Paramour the Defendant is at large 13 El. Dyer f. 301. n. 40. yet the Jury found with the Testimony in Chancery against direction of the Court upon a point in Law and their Verdict after affirmed in an Attaint brought and after a Writ of Right was brought and battle joyn'd 7. To what end is the Jury to be retorn'd out of the Vicinage whence the cause of Action ariseth To what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general To what end are they challeng'd so scrupulously to the Array and Pole To what end must they have such a certain Free-hold and be probi legales homines and not of affinity with the parties concern'd To what end must they have in many Cases the view for their exacter information chiefly To what end must they undergo the heavy punishment of the villanous Iudgment if after all this they implicitly must give a Verdict by the dictates and authority of another man under pain of Fines and Imprisonment when sworn to do it according to the best of their own knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or inferr the thing to be resolv'd by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assur'd it is so from their own Vnderstanding are forsworn at least in foro conscientiae 9. It is absurd a Jury should be fined by the Judge for going against their Evidence when he who fineth knows not what it is as where a Jury find without Evidence in Court of either side so if the Iury find 14 H. 7. f. 29. per Vavasor in Camer Scace without contradiction Hob. f. 227. upon their own knowledge as the course is if the Defendant plead Solvit ad diem to a Bond prov'd and offers no proof The Jury is directed to find for the Plaintiff unless they know payment was made of their own knowledge according to the Plea And it is as absurd to fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth as in Graves and Shorts Case Error of a Iudgment in the Common Bench Graves vers Short 40 El. Cro. f. 616. the Error assign'd was The Issue being whether a Feoffment were made and the Jurors being gone together to conferr of their Verdict one of them shew'd to the rest an Escrow pro petentibus not given in Evidence by the parties per quod they found for the Demandant upon Demurrer adjudg'd no Error for it appears not to be given him by any of the parties or any for them it must be intended he had it as a piece of Evidence about him before and shew'd it to inform himself and his Fellows and as he might declare it as a witness that he knew it to be true They resolv'd If that might have avoided the Verdict which they agreed it could not yet it ought to have been done by Examination and not by Error That Decantatum in our Books Ad quaestionem facti non respondent Judices ad quaestionem legis non respondent Juratores literally taken is true For if it be demanded What is the Fact the Judge cannot answer it if it be asked What is the Law in the Case the Jury
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many
8. before he is consecrated Bishop remains Rector as before after Consecration â—8 H. 6. f. 19. Br. Spoliation pl. 4. 1. Where the Pope licenses one who is created a Bishop to retain his ancient Benefice and the Patron presents another the elder Incumbent sues a Spoliation in the Spiritual Court it well lyes for both claim by the same Patron Quae supradicta omnes concesserunt saith the Book Fitz. N. B. Tit. Spoliation f. 36. b. 2. The Writ of Spoliation lyes properly by one Incumbent against another Incumbent where the right of the Patron comes not in debate As if a person be created Bishop and hath a Dispensation to hold his Rectory and after the Patron presents another Incumbent who is instituted and inducted the Bishop shall have against that Incumbent a Spoliation this proves the Bishop to continue Incumbent after his Consecration and to hold his Rectory by his former presentation Dy. 6. El. f. 228. b. pl. 48. 6 7 El. f. 233. A. p. 12. John Packhurst Rector of Cleve in Gloucestershire had a Dispensation to hold it notwithstanding he were advanc'd to any Bishoprick in the Realm for three years from the Feast of St. Michael 1560. to the same Feast 1563. he was after consecrated Bishop of Norwich and within the three years resign'd the Queen presented _____ one her Chaplain supposing she had title by Cession of the Bishop Sir H. Sydney the Patron brought a Quare Impedit and the Church was found to be void by Resignation of the Bishop of Norwich and recover'd and had Judgment 1. This case proves the Bishop of Norwich Incumbent as formerly notwithstanding his Consecration else the Living had not voided by his Resignation 2. The Dispensation was only for three years yet he was as intire Incumbent and might resign during those three years as if he had not been Bishop 3. It proves the Dispensation may be for a time only to hold his former Benefice ad modum concedentis which clears the last Question that in such a Commendam retinere the Dispensation is good though it be but for as long as he is Bishop of that See and then determines An Incumbent made Bishop and retaining by Dispensation may have which none but a perfect Incumbent can have a Writ of Spoliation Juris Utrum Vi Laica Removenda Annuity for him or Annuity brought against him In the Bishop of Ossory's case they which argued against him conclude out of all this difference results viz. That a Faculty granted to one which is not Incumbent to take a void Benefice is void and a Faculty to one which is Incumbent of a Benefice to retain the same is good The other side for the Bishop concluded the Capere in Commendam good where the Patron was not prejudic'd as in Lapse and consequently the Retinere to be good consented to by him who was to present upon voidance The Commendam Retinere may be for years or any time Colt and Glovers Case Hobart f. 156. the difference is manifest if their nature and reason be observed The difference between Retinere and Capere is no less than between holding that which is already my own and taking that which is anothers I am already benefic'd by Presentation c. in ordinary form I would take a Bishoprick which would void the Benefice therefore I obtain a Dispensation to continue holding my Benefice for three years I remain Parson of the same benefice of no less estate than I had before and when the three years are past the benefice voids as it would have done at the first if there had been no Dispensation And again Hob. f. 158. a Bishop by Dispensation may retain as many Benefices as he had lawfully before but take none of new if he had his number before c. William Bradbridge being Bishop of Exeter Cok. lib. Intr. f. 475. Heales Case Rolls 344. b. pl. 2. obtain'd Letters of Dispensation from the Arch-bishop with the Queens Confirmation to receive any two Benefices with or without cure and retain them with his Bishoprick within his Diocess quamdiu Episcopatui praedict praeesset after he was presented to the Rectory of Newton ferris and dyed and the Patron presented Simonaically and after six Months the Bishop presented as by Lapse and a Quare Impedit brought against him where the avoidance of the Church per mortem of the Bishop of Exeter is admitted though it be taken by protestation in that case that the Church non vacavit per mortem Note the Bishop of Exeter was presented to the Arch-bishop and instituted and inducted If after the death of the last Bishop who held this Church by Dispensation the King may present as the case is the next succeeding Bishop to hold it by Dispensation he may so present the third and so toties quoties there shall be a Bishop of Oxford and for the same reason viz. the small Incomes of the Bishoprick So shall the Patron for ever loose his Presentation omitting nothing to be done nor committing any thing not to be done but doing his duty in presenting a fit person and who deserved to be made Bishop Objections Tr. 9. E. 3. pl. 6 18 E. 3. f. 21. Fitz. N. Br. f. 34. Letter F. The most specious Objection is made upon the Books of ℈ E. 3. 18 E. 3. and the Abbot of Thorneys case there cited That if the King recover in a Quare Impedit and after confirms the Incumbents estate yet after the Incumbents death the King shall present and therefore in this case Answ 1 When the King hath recover'd in a Quare Impedit he hath right to present uncontrolably by the Record and may at his pleasure sue forth Execution and in the mean time permit the Incumbent to continue in the Benefice at his pleasure but here it is denied that the King hath any right to present Answ 2 The Kings permission or grant that the Incumbent should not be troubled during his life cannot be pleaded by the Patron in barr of the Kings right to present by vertue of his Iudgment for the Kings permisson was nothing to the Patron and the King ought to have Execution of his Iudgment when he demands it against him Answ 3 Justice Thyrning also gives the Reason of those Books The Cause 11 H. 4. f. 76. b per Thyrning 45 E. 3. f. 19. saith he is although the King confirms the Incumbents estate yet he had not his estate or possession by the King but by his Patrons presentment and by the Kings confirmation his right was neither executed nor extinct Answ 4 The Kings confirmation in the present case is not of the nature of his confirmation in the case of 9 E. 3. for he doth not here as there he did intend to transfer any right of his into the Incumbent by continuing his possession But his confirmation here is only formal and to compleat the dispensation of the Arch-bishop which
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
28 Eliz. by her Letters Patents under the Great Seal bearing date the said year and day at Westminster to the said Church then being void presented the said James White who was admitted instituted and inducted tempore pacis c. That the said James White being so Rector of the said Church and the said Richard Jervis seis'd of the said Mannor to which the said Advowson pertained c. the said Richard after at Norfield aforesaid died so seis'd After whose death the same descended to one Thomas Jervis Esquire as Son and Heir of Richard and from him descended to one Sir Thomas Jervis Knight who enter'd and was seis'd and so seis'd the said Sir Thomas Jervis 30. March 14 Car. 1. March the 30th 14 Car. 1. by his Deed in writing seal'd at Norfield aforesaid granted to one Phineas White the Advowson of the said Church for the first and next avoidance only whereby the said Phineas was possessed for the next avoidance of the said Advowson and so possessed the said Church became void by the death of the said James White which was the first and next avoidance after the said Grant to Phineas Phineas by virtue of his said Grant presented one Timothy White his Clerk who was thereupon admitted instituted and inducted tempore pacis tempore Car. 1. The said Timothy being Rector and the said Sir Thomas Jervis seis'd as aforesaid The said Sir Thomas died seis'd at Norfield aforesaid and the said Mannor with the Appurtenances descended to Thomas the Defendant as his Son and Heir who enter'd and was and yet is seis'd and being so seis'd the said Church became void by the death of the said Timothy White and the said Thomas Jervis the Defendant presented the other Defendant John Hunckley who was admitted instituted and inducted long before the Writ purchas'd Then Traverseth Absque hoc That the late Queen was seis'd of the said Advowson with the Chappel of Coston aforesaid in gross and as of Fee Jure Coronae suae Et hoc paratus est verificare and demands Judgment si Actio John Hunckley the Incumbent taking by protestation That the late Queen was not seis'd nor presented as by the Declaration is suppos'd for Plea saith That Richard Jervis was seis'd of the Mannor of Norfield with the Appurtenances in Com. praedicto and the Advowson of the said Church appertain'd thereto and pleads the same Plea verbatim as to the Queens Presentation of White and all other things as Jervis the Patron pleaded and the presentation of himself and that he was by the presentation of the other Defendant Jervis admitted instituted and inducted into the said Church Septemb. 15. 1660. and Traverseth Absque hoc that the King was seis'd of the said Advowson and Chappel in Gross as of Fee Et hoc paratus est verificare and demands Judgment The Attorney General replies and as to the Bishop claiming nothing but as Ordinary Demands Judgment and a Writ to the said Bishop and hath it with a Cesset Executio until the Plea determined between the King and the other Defendants And as to the Plea of the said Thomas Jervis the Patron the Attorney maintains the Seisin of the late Queen and of King James King Charles the First and of the King that now is of the said Advowson of the said Church and Chappel as by the Count before is declared And that the said Phineas White of his own wrong by usurpation upon the late King Charles the First to the said Church then void by the death of the said James White presented the said Timothy White and Traverseth Absque hoc That the Advowson of the said Church was or is pertaining to the Mannor of Norfield and demand Judgment and a Writ to the Bishop And as to the Plea of the Incumbent the Attorney replies as before to the Patrons Plea That the late Queen King James King Charles the First and the King that now is were seis'd of the said Advowson in gross as of Fee and that the said Phineas White presented the said Timothy by usurpation upon King Charles the First and Traverseth the appendancy of the Advowson Ecclesiae praedicta to the Mannor of Norfield The Patron Jervis rejoyns and demurs upon the Attorney's Replication as insufficient and assigns for Cause that the Attorney hath Travers'd matter not traversable and that the Traverse ought to have been omitted out of the Replication as also that the said Plea is repugnant in it self and wants form And John Hunckley the Incumbent rejoyns That the said Advowson is pertaining to the said Mannor as he alledged in his Plea before Et de hoc ponit se super Patriam and the Attorney similiter Imperfections in the Pleading 1. Vpon this Quare Impedit brought there is a good Title to present surmis'd for the King but no more and there is much difference between a Title appearing for the King and suppos'd only 2. The Defendant by his Plea in Barr hath not well Travers'd the King's Title for it is travers'd but in part for only the Seisin of the Advowson in the Queen is travers'd whereas properly the Seisin and Presentation of the Queen by reason of her Seisin ought to have been traversed by Absque hoc That the Queen was seis'd of the Advowson in gross and presented 3. The Seisin of the Advowson which makes not a Title alone nor is not either traversable or inquirable by the tender of a demy mark in the King's Case Fitz. N. Br. f. 31. Letter D. Littl. Coke 294. b. in droit d'Advowson is not traversable neither alone in a Quare Impedit But no Demurrer being thereupon nor no Issue taken upon that Traverse no more shall be said of it 4. The King may alledge Seisin without alledging any time as Sir Edward Coke saith in a droit d'Advowson 26 H. 8. f. 4. a. Hob. Digby Fitz. herb f. 102. and Moore and Newmans Case f. 80. and 103. Rice and Harrisons Case Yelverton f. 211. 5. The Defendants Traverse was not necessary because he had confess'd and avoided the Queens Presentation by saying it was by Lapse if the Defendant had rested upon avoiding the Queens Presentation 6. The Attorney General ought to have maintain'd his Count and travers'd the Queens Presentation by Lapse 7. He doth not do so but deserts making the Kings Title appear and falls upon the Plaintiffs Title that the Advowson was not appendant 8. He offers a double Issue that the Presentation of Phineas White was by Vsurpation and the Advowson not appendant to the Mannor Certain Premisses If a man Counts or Declares in a Quare Impedit That he or his Ancestors or such from whom he claims were seis'd of the Advowson of the Church but declares of no Presentation made by him or them such Count or Declaration is not good and the Defendant may Demurr upon it so is the express Book following 1. A man shall not have a Quare Impedit Fitzh Nat. Br.
f. 33. Letter H. if he cannot alledge a Presentation in himself or in his Ancestor or in another person through whom he claims the Advowson and that in his Count unless it be in a special Case Then puts that special Case As if a man at this day by the Kings Licence makes a Parochial Church or other Chantry which shall be presentable if he be disturbed to present to it he shall have a Quare Impedit without alledging any presentment in any person and shall Count upon the special Matter And the Law in this is the same in Case of the King with a Common Person by all the Books and Presidents in the Books of Entry To this add the Lord Hobarts Judgment which is alwaies accurate for the true reason of the Law Know that though it be true that a Presentation may make a Fee without more as a Presentation by Vsurpation doth that you never have a Declaration in a Quare Impedit L. Hobart Digby's Case f. 101. that the Plaintiff did present the last Incumbent without more but you declare that the Plaintiff was seis'd in Fee and presented or else lay the Fee-simple in some other and then bring down the Advowson to the Plaintiff either in Fee or some other estate The reason is That the Presentment alone is militant and indifferent and may be in such a Title as may prove that this new Avoidance is the Defendants and therefore you must lay the Case so as by the Title you make the Presentation past joyn'd to your Title shall prove that this Presentation is likewise yours as well as the last Whence it follows That to Count of an Estate and Seisin without a Presentation or of a Presentation without an Estate are equally vicious and naught be it in the Case of the King or of a Common Person and was never in Example or President 2. A second necessary Premise is this and is both natural and manifest When you will recover any thing from me it is not enough for you to destroy my Title but you must prove your own better than mine For it is not rational to conclude you have no right to this and therefore I have for without a better right melior est conditio possident is regularly Hobar 1. f. 162. Colt Glovers Case ad sinem paginae 3. Every Defendant may plead in a Quare Impedit the General Issue which is ne disturba pas because that Plea doth but defend the wrong wherewith he stands charg'd and leaves the Plaintiffs Title not only uncontroverted but in effect confess'd and the Plaintiff may upon that Plea presently pray a Writ to the Bishop or at his choice maintain the Disturbance for damages Hob. Digby versus Fitzherbert f. 103. 104. But if a man will leave the General Issue and controvert the Plaintiffs Title he must then enable himself by some Title of his own to do it but yet that is not the principal part of his Plea but a formal Inducement only And therefore there is no sense if you will quarrel my possession and I to avoid your Title effectually do induce that with a Title of my own that you shall fly upon my Title and forsake your own for you must recover by your own strength and not by my weakness The Lord Hobart goes further in giving the reason of this course of Pleading in Colt and Glovers Case in the place before cited of this form of pleading in Law there is one reason common to other Actions wherein Title is contain'd to the Land in question specially which is that the Tenant shall never be receiv'd to Counter-plead but he must make to himself by his Plea a Title to the Land and so avoid the Plaintiffs Title alledg'd by Traverse or confessing and avoiding But in the Quare Impedit there is a further reason of it for therein both Plaintiff and Defendant are Actors one against another and therefore the Defendant may have a Writ to the Bishop as well as the Plaintiff which he cannot have without a Title appearing to the Court And so are the Presidents Rastal L. Intratio f. 484. a.b. when a Quare Impedit is brought against the Patron for disturbance of his Clerk not being in possession The Case in brief and the Question upon it Vpon the Record as it hath been open'd and the pleading therein between the King and the Patron upon which all the Question ariseth first I shall not make the Question to be Whether there may be a Traverse taken upon a Traverse though that Question be in truth in the Case for that is a Question rather upon terms of Art than a Questio Forensis and rising upon the naked fact of a Case depending in Iudgment I shall therefore make the Question upon this Case such as nakedly it is without involving it in any difficulty of terms The King brings a Quare Impedit and declares That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield in gross as of Fee and presented and derives the Advowson to himself and the Church became void by the death of the Queens Presentee and he is disturbed to present by the Defendant Jervis The Defendant saith That before the Queen presented R. Jervis his Ancestor was seis'd in Fee of the Mannor of Norfield to which the Advowson of this Church is appendant that it became void by the death of one Squire and continued so for two years and that the Queen then presented White her Clerk by lapse That the Mannor and Advowson descended from Richard to Thomas Jervis from Thomas to Sir Thomas Jervis who granted the next avoidance to one Phineas White who presented upon the death of James White one Timothy White who was instituted and inducted and then derives the Mannor and Advowson to himself and that the Church becoming void upon the death of the said Timothy he presented the other Defendant Hunckley and Traverseth the Queens Seisin of the Advowson in gross The Law in Case of a Common Person If a Common Person brings a Quare Impedit and counts his Title to present and that he is disturbed The Defendant to counter-plead the Plaintiffs Title makes as he must a Title to himself to present and confesses and avoids or Traverseth the Plaintiffs Title 1. The Plaintiff shall never desert his own Title and by falling upon and controverting the weakness only of the Defendants Title ever recover or obtain a Writ to the Bishop though the Defendants Title do not appear to the Court to be sufficient for the unanswerable Reasons given by the Lord Hobart in the first place 2. If you will recover any thing from another man it is not enough for you to destroy his Title but you must prove your own better than his 3. There is no sense if you will quarrel my Possession or Right and I to avoid your Title effectually either by Traversing it which is denying or confessing and avoiding
to that Issue but may take another This dis-affirms the former Case when the Information is by an Informer the King must maintain his Information Note the close of this Case Ut supra per Attornatum Regis alios legis peritos I shall give the Case here mentioned in this ut supra which will I think determine the Question and clearly establish the Law according to the Difference taken That Case is likewise in Br. and cited to be as in 34 H. 8. whereof there is no Year-book neither some four years before the last Case I mentioned It is thus Br. Prerogative p. 116. 34 H. 8. Nota by Whorhood Attornatum Regis alios When an Information is put into the Chequer upon a penal Statute and the Defendant makes a Barr and Traverseth that there the King cannot wave such Issue tender'd and Traverse the former matter of the Plea as he can upon Traverse of an Office and the like when the King is sole party and intitled by matter of Record for upon the Information there is no Office found before and also a Subject is party with the King for a moiety Quod nota bene Here it is most apparent That upon an Information when the King hath no Title by matter of Record as he hath upon Office found the King cannot waive the Issue tender'd upon the first Traverse though the Information be in his own name which disaffirms the second Case in that point And for the Supernumerary reason That the King is not the sole party in the Information it is but frivolous and without weight but the stress is where the King is sole party and intitled by matter of Record I shall add another Authority out of Stamford Praerogative If the King be once seis'd his Highness shall retain against all others who have not Title nothwithstanding it be found also that the King had no Title but that the other had possession before him 37 Ass pl. 11. as appeareth in 37. Ass p. 35. which is pl. 11. where it was found That neither the King nor the party had Title and yet adjudg'd that the King should retain for the Office that finds the King to have a Right or Title to enter Stamford Praerogative f. 62. b. makes ever the King a good Title though the Office be false c. and therefore no man shall Traverse the Office unless he make himself a Title and if he cannot prove his Title to be true although he be able to prove his Traverse to be true yet this Traverse will not serve him Stamford Prerogative f. 64. b. It is to be noted That the King hath a Prerogative which a Common Person hath not for his Highness may choose whether he will maintain the Office or Traverse the Title of the party and so take Traverse upon Traverse If the King take Issue upon a Traverse to an Office he cannot in another Term change his Issue by Traversing the Defendants Title for then he might do it infinitely But the King may take Issue and after Demurr 13 E. 4. expresly and several other Books 28 H. 6. f. 2. a. or first Demurr and after take Issue or he may vary his Declaration for in these Cases as to the Right all things remain and are as they were at first but this ought to be done in the same Term otherwise the King might change without limit and tye the Defendant to perpetual Attendance Judgment pro Defendente Hill 21 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff and Robert Huntington Defendant in a Plea of Trespass and Ejectment THE Plaintiff declares That Thomas Wise 1. April 21 Car. 2. at Hooknorton in the County of Oxford by his Indenture produc'd dated the said day and year demis'd to the said Thomas Rowe the Mannor of Hooknorton with the Appurtenances 4 Messuages 100 Acres of Land 50 Acres of Meadow 400 Acres of Pasture and 50 Acres of Wood with the Appurtenances in Hooknorton aforesaid As also the Rectory and Vicaridge of Hooknorton and the Tithes of Grain Hay and Wool renewing in Hooknorton aforesaid To have and to hold the Premisses from the Feast of the Annunciation of the Virgin then last past to the end and term of Seven years then next ensuing That by virtue thereof the said Thomas Rowe the Plaintiff into the said Mannor and Tenements enter'd and of the said Rectory Vicaridge and Tithes was possessed That the said Robert Huntington the Defendant the said First of April with Force and Arms into the said Mannor Rectory Vicaridge and Tithes entred and him Ejected against the Peace to his great damage and whereby he is endamaged 100 l. The Defendant Huntington pleads not Culpable And thereupon Issue is Ioyn'd The Jury give a Special Verdict That as to the Trespass and Ejectment in the said Mannor and Tenements and in the said Rectory Vicaridge and Tithes aforesaid excepting 200 Acres of Pasture parcel of the said Mannor of Hooknorton That the Defendant Huntington is not Culpable And as to the said 200 Acres they say that long before the said Trespass and Ejectment That is the 14th day of October 1. Mar. one Robert then Bishop of Oxford was seis'd in his Demesne as of Fee in Right of his Bishoprick of the said Mannor whereof the said 200 Acres are parcel and so seis'd the said 14th of October 1 Mariae at Hooknorton aforesaid by his Indenture of Demise seal'd with his Episcopal Seal Dated the said day and year and shew'd in Evidence to the Jury made between the said Bishop of the one part and John Croker of Hooknorton Esq of the other part for Considerations in the said Indenture of Demise mentioned had demis'd and to farm lett to the said Croker Among other things the said Mannor with the Appurtenances whereof the said 200 Acres are parcel To have and to hold to the said Croker and his Assigns from the end and expiration prioris Dimissionis in eadem Indentur Mentionat for and during the term of Ninety years then next following The tenor of which Indenture of Demise follows in haec verba This Indenture made the Fourteenth day of October 1 Mariae c. Between the said Bishop and the said John Croker c witnesseth That where the said Bishop by the name of the Reverend Father in God Robert King Abbot of Tame and Commendatory of the late Monastery of Oseney in the County of Oxford and the Covent of the same by their Deed Indented Dated 6. April 29 Hen. 8. with the Consent of their whole Chapter Have demis'd and to farm lett All that their Mansion or Farm of Hooknorton with the Appurtenances in the said County and all the Mansion and Farm Demesne Lands Meadows Leasowes and Pastures with all Commodities and Profits to the said Mannor belonging or appertaining and the customary works of all the Tenants not granted nor remitted before the Date of the Deed And the Parsonage of Hooknorton and
in Indentura praedict mentionat shall be as is contended an absolute and positive finding of a former Demise made to whose expiration the Indenture 1 Mariae referrs it must be either the demise 29 H. 8. or that of 1 E. 6. for no other are mentioned in the Indenture 1 Mar. and it can be but a finding of one of them for the words à fine prioris dimissionis in Indentur praedict mentionat cannot possibly extend to both Be it then understood the Demise 1 E. 6. for in that the Mannor is clearly named the Consequence must be That the Deed of 1 Mar. which is an intire lease as well of the Mannor as of the Vicaridge Parsonage and of other things under several Rents for Ninety years commencing as to the Mannor from the Expiration of the suppos'd Demise 1 E. 6. shall be a good lease for Ninety years thence forwards because that recited Demise is also suppos'd to be positively found by the Jury by those words of their Verdict But as to the Vicaridge Parsonage and other things and the Rents thereupon reserv'd which are demis'd by the Indenture of 1 Mar. for Ninety years to commence from the Expiration of the other recited Demise suppos'd in 29 H. 8. the lease of 1 Mar. must commence immediately from the Date because the Jury have not found that recited Demise positively but only as recited and therefore not found it to be a real Demise and consequently the lease of 1 Mariae as to those particulars referring the term to commence from the Expiration of a term granted 29 H. 8. not in esse because not found must begin from 1. Mar. which doubtless the Jury never intended But now for Authority I will resume the Case formerly cited of 3 E. 6. in the Lord Brook If A. makes a Lease to B. Habendum for Forty years from the expiration of a former Lease made of the Premises to J. N. and this be found occasionally by special Verdict as our Case is but the Jury in no other manner find any Lease to be made to J. N. then as mentioned in the Lease to B. By the Resolution of that Book the Lease to B for Forty years shall begin presently And who will say in this Case That because the Jury find a Lease made to B. for Forty years Habendum from the Expiration of a former Lease made to J. N. that therefore they find a Lease made formerly to J. N. when in truth J. N. had no such Lease for they only find what the Habendum in the Lease to B. is which makes a false mention of a former Lease to J. N. but had no Evidence to find a Lease which was not Exactly parallel to this is our present Case the Jury find the Bishop of Oxford by a Lease dated the Fourteenth of October 1 Mariae demised to Groker the Mannor of Hooknorton Habendum to him and his Assigns for Ninety years from the Expiration of a former Demise mentioned in the said Indenture of Lease 1 Mariae But do not affirm or find explicitly or implicitly any former demise made when they only find summarily the Habendum of the Lease 1 Mariae which mentions such a former Demise Cr. 10 Car. 1. f. 397. Another Case I shall make use of is the Case of Miller and Jones versus Manwaring in an Ejectment brought in Chester upon the Demise of Sir Randolph Crew The Jury in a Special Verdict found That John Earl of Oxford and Elizabeth his Wife were seis'd in Fee in Right of Elizabeth of the Mannor of Blacon whereof the Land in question was parcel and had Issue John the said John Earl of Oxford by Indenture dated the Tenth of February 27 H. 8. demis'd the Mannor to Anne Seaton for Four and Thirty years Elizabeth died 29 H. 8. And the said Earl of Oxford died March 31. H. 8. Afterwards John the Son then Earl of Oxford the Thirtieth of July 35 H. 8. by Indenture reciting the Demise to Anne Seaton to be dated the Tenth of February 28 H. 8. demis'd the said Mannor to Robert Rochester Habendum after the End Surrender or Forfeiture of the said Lease to Anne Seaton for Thirty years It was adjudged first in Chester and after upon Error brought in the Kings Bench It was resolv'd by all the Iudges who affirmed unanimously the first Iudgment That the Lease to Rochester began presently at the time of the Sealing for several Reasons 1. Which is directly to our purpose because there was no such Lease made to Anne Seaton having such beginning and ending as was recited in Rochester's lease 2. Because the lease made by John first Earl of Oxford was determined by his death Three years before Rochester's lease and consequently no lease in esse when the lease was made to Rochester which Reasons are in effect the same viz. That a lease made to commence from the end of any lease suppos'd to be in esse which indeed is not the lease shall commence presently From this Case these Conclusions are with clearness deducible 1. That if a lease be found specially by a Jury in which one or more other leases are recited the finding of such lease is not a finding of any the recited leases Therefore the finding of the lease made to Rochester was not a finding of the lease therein recited to be made to Anne Seaton in any respect 2. The second thing clearly deducible out of this Case is That although the Jury by their Special Verdict did find that John the Son Earl of Oxford did by his Indenture demise to Rochester for Thirty years the Mannor of Blacon Habendum from the End Surrender or Forfeiture of a former lease thereof made to Anne Seaton dated the Tenth of February 28 H. 8. yet this was not a finding of any such lease made to Anne Seaton but only a finding of the Habendum as it was in the lease made to Rochester which mentioned such a lease to be made to Anne Seaton So in our present Case the Jury finding that the Bishop of Oxford 1 Mariae did demise the Mannor of Hooknorton to John Croker Habendum for Ninety years from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. is not a finding of any such former Demise to be made but a finding that in the Indenture 1 Mariae it is suggested there was such a former Demise and no more And if any man shall object That in Rochester's Case the Reason why no such lease is found to be made to Anne Seaton in 28 H. 8. to be because it is found that the lease made to Anne Seaton was in 27 H. 8. that is not to the purpose because the Jury might find and truly that a lease was made to her Dated the Tenth of February 27 H. 8. but that was no hindrance but that another lease was made to her in 28 H. 8. as is mentioned in Rochester's lease which had been a Surrender in Law
of that made in 27 H. 8. Therefore it is manifest That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than because the Jury find no such to have been made but find a suggestion of it only in Rochester's lease And it is the same exactly in our present Case The third thing deducible from the Case is That a Demise by Indenture for a term Habendum from the Expiration of another recited or mentioned term therein 35 H. 6. 34 Br. Tit. Faits p. 4. 12 H. 4. 23 Br. Faits 21. which is not or not found to be which is the same thing is no Estoppel or Conclusion to the Lessee or Lessor but that the Lessee may enter immediately and the Lessor demise or grant in Reversion after such immediate lease There is another Case resolv'd at the same time between the same Persons and concerning the same Land and published in the same Report and specially found by the same Jury Edward Earl of Oxford Son of John the Son of John Earl of Oxford by Indenture between him and Geoffry Morley Dated the Fourteenth of July 15 Elizabethae reciting That John his Father by Indenture the Thirtieth of July 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon Habendum for Thirty years from the end or determination of the lease made to Anne Seaton the Tenth of February 27 H. 8. which is a false recital for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton that is recited to be made the Tenth of February 28 H. 8. and that afterwards the said John Earl of Oxford had granted by Indenture Dated the Six and twentieth of March 35 H. 8. reciting the lease to Anne Seaton the Tenth of February 27 H. 8. to Hamlett Freer the Reversion of the said Mannor of Blacon Habendum the said Mannor and Premisses from such time as the same shall revert or come to the possession of the said Earl or his Heirs by Surrender Forfeiture or otherwise for Sixty years for so is the Case put in one part of the Report but in another part of it it seems to be That the Demise to Freer was when it should revert after the Expiration Surrender or Forfeiture omitting the words or otherwise of the Lease made to Anne Seaton which will nothing vary the Case The said Edward Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon to the said Geoffry Morley Habendum from the end of the said Leases for Fifty years The Question was Whether any of these leases made either to Hamlett Freer or Morley be good or were in esse at the time of the lease made by Sir Randolph Crew to the Plaintiff Sir Randolph Crew claiming the Inheritance from the Earl of Oxford and Sir William Norris the Leases from Freer and Morley and under him the Defendant And Iudgment was given in Chester for the Plaintiff And upon a Writ of Error of this Iudgment brought in the Kings Bench wherein the Error assign'd was The giving of Iudgment for the Plaintiff After several Arguments at Barr and at the Bench Seriatim by the Iustices it was unanimously agreed The Iudgment in Chester for the Plaintiff should be affirmed And that neither the Lease to Freer nor that to Morley was good to avoid the Plaintiffs Title As for the lease to Freer it being a grant of a Reversion nominally and by Agreement of Parties there being no Reversion because no lease at the time of the Grant was in esse either of Seatons or Rochesters upon a point of Rasure in Rochester's Demise found in the Case and for that Land in possession could not pass by the name of a Reversion though by the name of Land a Reversion may pass for he who will grant Land in possession cannot be thought not to grant the same if only in Reversion L. Chandoes Case 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries And for that Morley's lease was to commence after the lease granted to Rochester which was to commence after that granted to Seaton the Tenth of February 27 H. 8. whereas no such lease was granted to Rochester but a lease to commence after one granted to Seaton in 28 H. 8. It was resolv'd None of those leases were in esse and that Morley's lease commenced therefore presently The words of the Resolution are these as to Morley's Lease It was Resolv'd that Morley's Lease was not in esse for that misrecites the former Leases and so hath the same Rule as the former where it recites Leases and there be none such Therefore it shall begin from the Date which being in the Fifteenth of the Queen for Fifty years ended 1623. which was before the Lease made to the Plaintiff for these Reasons Judgment was affirmed The same Conclusions are deducible from this lease to Morley as from the former to Rochester and therefore I will not repeat them But here are two Judgments in the very point of our Case and affirmed in a Writ of Error unanimously in the Kings Bench. And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas 1643. and thence inferr'd the Jury have found the leases by which that Rent was ascertain'd namely the leases of 29 H. 8. and 1 E. 6. Surely if a lease be for a term of years to commence from the end of a former term and for such Rent as is reserv'd upon such former Demise that never was as no term can commence from the end of another which never was so no Rent can be behind which cannot appear but by a Demise which was never made that is which is never found to be made Add further That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them For a Deed is not found at all nor a last Will when only the Jury find but part of the Deed or Will for the Court cannot Iudge but upon the whole and not upon part It it be found in Assise the Defendant was Tenant and disseis'd the Plaintiff nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will but not the Will at large the Court cannot judge upon this Verdict 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal whose Office it is to judge upon the whole Will which is not found 38 39 El. B. R. West and Mounsons Case Rolls 696. Title Tryal So for the same reason finding but part of a recited Deed and not the whole is as if no part were found and it appears by the Deed of 1 Mariae that both Deeds of 29 H. 8. and 1 E. 6. are
power lawfully not to abate it and us'd that last lawful power and not the first and wrong'd none in using it To this may be added That the Iudgment upon a simple Contract is the Act of the Court and compulsory to the Executor and he hath then no Election but must obey the Iudgment In conclusion though it were agreed That in the Action of Debt brought by Allington upon a simple Contract Iudgment ought not to have been given against the Defendant being Administrator but the Writ should have abated because the Administrator was not chargeable And though the Iudgment given were erroneous and for that cause reversible yet standing in force unrevers'd It is a good Barr to the Plaintiffs Action But lest this should countenance Iudges abating the Writ ex officio in such Actions brought or Plaintiffs to bring Error upon Iudgments given in such Actions I conceive the Law is clear That Iudges ought not ex officio to abate such Writ nor otherwise than when the Executor or Administrator Defendant in such Action demurrs and demands Judgment of the Writ and that Iudgment given against such Defendants not demurring to the Writ is not Erroneous unless for other cause If it be urg'd further That though a Iudgment obtain'd upon a simple Contract be a barr to an Action of Debt brought after upon an Obligation or to an Action of the Case upon an Assumpsit to pay mony as the present Case is Yet it should not barr if the Action upon which it was obtain'd were commenc'd pending a former Action upon an Obligation or upon an Assumpsit for mony in which the Intestate could not have waged his Law The answer is as before such Iudgment barrs until revers'd if admitted to be reversible as it is not But the Law is setled That wheresoever an Action of Debt upon Bond or Contract is brought against a man he may lawfully confess the Action and give way to a Judgment if there be no fraud in the Case although he have perfect notice of such former Suit depending nor is there any restraint or limit of time for confessing an Action brought upon a simple Contract more than upon a Bond. And to satisfie any Debt upon Obligation 5 H. 7. f. 27. b. Moore Scarleâ— Case f. 678. Crook 38 El. f. 462. Green Wilcocks Case before a Iudgment so obtain'd is a Devastavit in the Executor or Administrator and so it is to satisfie any latter Judgment if there be not assets to satisfie the first also So are the express Books to those points of 5 H. 7. per Curiam and Scarles his Case in Moore and Green and Wilcock's Case in Crook Eliz. Yet in 25 Eliz. when an Action of Debt for 100 l. was brought against an Executor in C. B. and pending that Debt was brought against him in B. R. for 100 l. which latter he confess'd and the Iudgment there had pleaded in Barr to the first Action And upon Question if the Plea were good Fenner and Walmesley held it good but Anderson Mead Wyndham and Periam argued to the contrary and that he ought to have pleaded the first Action pending to the second Action brought The Arguments of both sides you may see in Moore f. 173. Moore 25 El. f. 173. where it is left a Quere the Iudges doubting the Case but since the Law is taken That the Iudgment is a good barr to the first Action It will be still objected That if the Law be that Executors or Administrators may pay debts upon simple Contracts of the deceas'd to which they are not bound and thereby prevent the payment of a debt to which they are bound It is repugnant to Reason and consequently cannot be Law for that is in effect at the same time to be bound and not bound to pay For he who may not pay being bound is not bound at all For clearing this we must know Though Executors or Administrators are not compell'd by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them For 1. Vpon committing Administration Oath is taken to administer the Estate of the dead duely which cannot be without paying his debts 2. Oath is taken to make true accompt of the Administration to the Ordinary and of what remains after all Debts Funeral Charges and just Expences of every sort deducted 3. This appears also by the Statute of 31 E. 3. c. 11. That Administrators are to administer and dispend for the Soul of the Dead and to answer to other to whom the dead persons were holden and bound which they cannot better do than by paying their debts And as this was the ancient Law and practise before in the Spiritual Court so by the new Act in 22 and 23 of the King for the better settling of Intestates Estates It is enacted accordingly that upon the Administrators accompt deductions be made of all sorts of debts This appears to be the ancient Law by the Great Charter c. 18. and long before by Glanvill in Henry the Second's time and Bracton in Henry the Third's time 4. And by Fitz-herbert in the Writ de rationabili parte bonorum the debts are to be deducted before division to the wife and children And upon the Executors accompt all the Testators debts are to be allow'd before payment of Legacies which were unjust if the payment of them were not due as appears by Doctor and Student Executors be bound to pay Debts before Legacies by the Law of Reason and by the Law of God for Reason wills that they should do first that is best for the Testator that is to pay debts which he was bound to pay before Legacies which he was not bound to give 2. It is better for the Testator his Debts should be paid Doct. Stud. l. 2. c. 11. for not payment of which his Soul shall suffer pain but none for not performing his Legacy The Ordinary upon the accompt L. 2. c. 10. f. 158 in all the Cases before rehears'd will regard much what is best for the Testator And I conceive the Ordinary may inforce the payment of Debts upon Contracts as well as Legacies or Marriage mony and no Prohibition lyes An Executor or Administrator may retain for his own satisfaction a Debt by single Contract due from the Testator or Intestate which he could not do unless the payment were lawful If at the Common Law the Executors payments of Debts upon simple Contracts were not just Why have the Iudges in all Ages given Judgment for the Plaintiffs unless the Defendant either Demurrs in the Commencement of the Plea or avoids the Debt by special matter pleaded and put in issue but he shall never in such case either Arrest the Iudgement or bring Error after Iudgment for that Cause And so it is agreed for Law in Read and Norwoods Case in Plowden where the Iudges had view of numerous Iudgments in that kind as there appears
And if such Debts were not justly to be so demanded and paid it had been against the Iudges Oath to pass such Iudgments for the Defendant is not bound to Demurr but leaves the Iustice of the Plaintiffs demand to the Court. In Decimo H. 6. Cotsmore 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question hath these words The Law will not charge Executors with a duty due by a simple Contract made by the Testator Then if such Action be brought against Executors upon a simple Contract made by the Testator and they will not take advantage at the beginning of the Pleas in abatement of the Writ but plead other matter which is found against them they never shall have advantage to shew that before Judgment that is in Arrest of Judgment and that I have known adjudg'd in this place once before this time Here is not only his own Opinion but a Iudgment by him cited in that Court formerly in the point I shall add another Case to this purpose A man brought a Writ of Debt against another 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand Littleton caus'd the Attorney of the Plaintiff as printed but should be Defendant to be demanded and so he was and Littleton demanded of him Si'l voyl avoyder son Suite not his own but his who counted against him que dit que voyl and after Littleton said to the Attorney of the Plaintiff The Court awards that you take nothing by the Writ for know that a man shall never have an Action against Executors where the Testator might have wag'd his Law in his life time quod nota It was not proper to ask the Plaintiffs Attorney Whether he would avoid his Clyents Suit and an unlikely answer of his to say Yes but a rational demand to the Defendants Attorney Whether he would avoid his Suit who counted against him and probably he should answer Yes and after Littleton said to the Attorney of the Plaintiff the Court awards you take nothing by your Writ If he had been the person to whom the question was first asked and who immediately before had answer'd Yes the Book had not been that after Littleton said to the Attorney of the Plaintiff but that Littleton said to him who was the same he discours'd with The Print thus rectified this Case agrees with the Law deliver'd by Cotsmore An Executor is sued and declared against in Court for so was the Course then upon a simple Contract of his Testators the Iudge asks his Attorney Whether he had a mind to avoid the Suit who answer'd Yes If the Iudge had thought fit he might have avoided the Suit without making any question but knowing it was not consonant to Law to avoid a Suit upon a simple Contract unless the Executor himself desired it He therefore asked him the Question and finding he did desire it the Iudge presently told the Plaintiffs Attorney He could take nothing by the Writ Else you see the Consequence of this Iudgment That the Iudges ex officio should prevent any Iudgment for the Plaintiff in Debt brought upon a simple Contract against an Executor whether the Executor would or not against former and subsequent usage Brook in Abridging this Case and not reflecting upon it rightly abridges it that Littleton demanded the Plaintiffs Attorney If he would avow his Suit whereas the word is clearly avoid not avow and to what purpose should he ask that Question for sure it was avow'd as much as could be when counted upon at the instant in Court Then Brook makes a Note Br. Executor pl. 80. Nota cest Judgment ex officio And this Note of Brooks mis-led the Lord Anderson once to the same mistake if the Report be right but the like hath not been before or since Rob. Hughson's Case Gouldsboroughs Rep. 30 Eliz. f. 106. 107. An Action was brought against an Administrator upon a Contract of the Intestates who pleaded fully administred and found against him Anderson said that ex officio the Court was to stay Iudgment and did so because the Administrator was not chargeable upon a simple Contract But since that Case of Hughson one Germayne brought an action of Debt against Rolls as Executor of Norwood for Fees as an Attorney in the Common Bench and for soliciting in the Queens Bench Germayne versus Rolls 37 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation Rolls pleaded Ne unque Executor which was found against him and Judgment given Vpon which Rolls brought a Writ of Error and the Error assign'd was That the Action lay not against an Executor because the Testator could have waged his Law But it was resolv'd That for Attorney's Fees the Testator could not wage his Law but for the rest he might and that the Executor might have demurr'd at first but pleading a Plea found against him it was said he was Concluded some difference of Opinion was But agreed That the Executor confessing the Action or pleading nil debet in such Case and that found against him he hath no remedy And Popham remembred Hughson's Case in the Common Pleas and would see the Roll for he doubted that both in that Case and this of Germayne the Executor had not confessed the Debt in effect But after it was moved again and all the Judges Hill 38 Eliz. Cro. 459. pl. 4. but Gawdy were of Opinion that the Judgment was well given as to that Cause but it was revers'd for a Cause not formerly mov'd which was That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered that is for the mony for soliciting which was not a certain Debt but to be recovered by Action on the Case Some Cases in the Old Books may seem to colour this Opinion That the Judges ex officio in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate ought to abate the Writ 25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator The Iudges said Nil Capiat per breve if he have no better specialty 12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators and there it appears the Defendants Council would have demurr'd and the Cause is mentioned That the writing of the Tally might be washed out by water and a new put in the place and the Notches chang'd and the Iudgment was Nil capiat per breve This being the same Case with the former the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law Besides it appears in the latter
the Trespass suppos'd that is the First of August 1606. King James was seis'd in right of the Crown of the said Pool and three Gardens with the Appurtenances in St. Margarets aforesaid in his Demesue as of Fee They find again That the same First Day of August 1606. A Water-work was built in the said Gardens and the said Pool was thence us'd with the said Water-work until the Twelfth Day of March in the Eleventh year of King James That King James so seis'd the said Twelfth of March by his Letters Patents under the Great Seal of England bearing Date the said Twelfth of May 11 Jac. in consideration of 70 l. 10 s. of lawful mony of England paid by Richard Prudde and for other considerations him moving at the nomination and request of the said Richard Et de gratia sua speciali ex certa scientia mero motu for him his Heirs and Successors granted to the said Richard Prudde and one Toby Mathews Gent. and to their Heirs and Assigns among other things the said Three Gardens and Water-work thereupon erected to convey water from the River of Thames to divers houses and places in Westminster and elsewhere with all and singular the Rights Members and Appurtenances of what nature and kind soever They further find That the said King James by his said Letters Patents for the consideration aforesaid for him his Heirs and Successors granted to the said Richard Prudde and Toby Mathew their Heirs and Assigns inter alia Omnia singula stagna gurgites aquas aquarum cursus aquaeductus to the said Premisses granted by the said Letters Patents or to any of them or to any parcel of them quoquo modo spectantia pertinentia incidentia vel appendentia or being as member part or parcel thereof at any time thentofore had known accepted occupied used or reputed or being together with the same or as part parcel or member thereof in accompt or charge with any of his Officers as fully and amply as the same were formerly held by any Grant or Charter Ac adeo plene libere integre ac in tam amplis modo forma prout idem nuper Rex aut aliquis progenitorum sive predecessorum fuorum premissa praedict per easdem Litteras Patent prae-concess quamlibet seu aliquam inde partem sive parcellam habuerunt habuissent vel gavisi fuissent habuissent vel habere uti gaudere debuiffent aut debuit They further find That the said Pool was necessary for the Water-work aforesaid and that it could not work without the said Pool They further find That the King who now is by his Letters Patents dated at Westminster the Fifteenth of February the Eighteenth of his Reign inroll'd in the Exchequer in consideration that Henry Alderidge Gent. a piece of Laud and other the Premisses granted by the said Letters Patents cover'd with water and hurtful mudd would fill up at his proper charges and perform the Covenants and Agreements in the Letters Patents contain'd for him his Heirs and Successors granted the aforesaid piece of Land containing as aforesaid in length and breadth by the name of All that piece of Land or broad Ditch lying and being in the Parish of St. Margarets Westminster with particular Boundaries thereto expressed To have and to hold from the Feast of the Annunciation last past for the term of One and twenty years thence next ensuing They find That the said Henry Alderidge entred into the Premisses then in the possession of the Defendants and so possess'd made the Lease to the Plaintiff Habendum to him and his Assigns as in the Declaration That the Plaintiff entred by virtue thereof into the said piece of Land and was possess'd till the Defendants Ejected him And if upon the whole matter the Defendants be Culpable they assess damages to 12 d. and costs to 40 s. And if they be not they find them not culpable The first Question is What can pass by the name of Stagnum or Gurges for if only the water and not the soyl passeth thereby the Question is determined for the piece of Land containing such length and breadth cannot then pass Fitzh N. Br. 191. b. Lett. H. By the name of Gurges water and soyl may be demanded in a precipe 34 Ass pl. 11. Coke Litt. f. 5 6. ad finem By the name of Stagnum the soyl and water is intended 1. Where a man had granted to an Abbot totam partem piscariae suae from such a Limit to such a Limit reservato mihi Stagno molendini mei And the Abbot for a long time after the grant had enjoyed the fishing of the Pool It was adjudg'd the Reservation extended to the water and soyl but the Abbot had the fishing by reason of long usage after the Grant which shewed the Intent 1606. 4 Jac. The next Question is When the soyl may pass by the word Stagnum whether it may as belonging and pertaining to the Water-work erected 6 Jac. and granted away with the Pool as pertaining to it in 11 Jac. as it is found or to the Gardens which seems a short time especially in the Case of the King to gain a Reputation as belonging and appertaining As to this Question things may be said pertaining in Relation only to the extent of the Grant As an antient Messuage being granted with the Lands thereto appertaining and if some Land newly occupied and not antiently with that Messuage shall pass as appertaining is a proper Question but that is a Question only of the extent of the Grant and what was intended to pass and not of the nature of the Grant Four Closes of Land part of the possessions of the Priory of Lanceston came to King Henry the Eighth and after to Queen Elizabeth usually call'd by the Name of Drocumbs or Northdrocumbs A House was built 21 Eliz. as the Book is by the Farmers and Occupiers of these Closes upon part In 24 Eliz. she granted Totum illud Messuagium vocat Drocumbs ac omnia terras tenementa dicto messuagio spectantia in Lanceston After King James made a Lease of the Four Closes call'd Northdrocumbs or Drocumbs Gennings versus Lake 5 Car. 1. Crook 168. and upon question between the Queens Patentee and the Kings Iudgment was given for the Queens Patentee Because though the House was newly erected before the Queens Grant yet the Land shall be said belonging to it and it shall pass by such name as it was known at the time of the Patent and that was a stronger Case than this there being but Three or Four years to give Reputation of belonging or appertaining Another meaning of the words belonging or appertaining is when they relate not to the extent or largeness of the Grant but to the nature of the thing granted As if a man newly erect a Mill in structure and hath no Water-course to it if he grants his Mill with the Appurtenances nothing passes but the structure
double Costs and other Advantages as by the Act of 7 Jac. cap. 5. is provided The first Question upon this Special Verdict is Whether if any Officer in the Act mentioned or any in his assistance shall do things by colour of their Office not touching or concerning their said Office and shall be therefore impleaded Or if they or any of them shall be impleaded for or concerning any matter cause or thing by them or any of them done by pretence of their Offices and which is not strictly done by virtue or reason of their Office but is a misfeasance in Law shall have the benefit of this Act of having the matter tryed in the County where the Fact was done and not elsewhere If so 1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done unless the Plaintiff please to lay it there and if he so pleas'd it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done 2. By such Exposition of the Act the Action shall never be laid where the Fact was done for if it may be laid elsewhere at all if it be found upon the Tryal That the Officers question'd did not according to their Office there will be no cause to lay the Action in the proper County for the Iury where the Action is laid will find for the Plaintiff for the Misfeazance and if it be found the Defendants have pursued their Office wherever the Action is laid the Iury will find for the Defendants and then no cause to lay an Action in the County where the Fact was done So Quacunque via data the Act will be useless 3. If it can be laid in another County without hearing Evidence it cannot be known whether the Officer hath misdone or not How then can the Iury as the Act directs find the Defendants Not guilty without regard or respect to the Plaintiffs Evidence for then the Iury must regard the Evidence to find whether the Officer hath mis-done and not regard the Evidence at all to find the Officers Not guilty as the Act doth order Nor is there any inconvenience because by the Intention of Law whether the Officers have done justifiably or not without this Act of 21. the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise fieri debuit though factum valet not being done The second Question is Whether upon the special points referred to the Court by the Iury they have found all the Defendants or any of them and whom Not guilty It hath been admitted at the Barr That the Defendants excepting Sir Richard Coxe cannot be found culpable by this Act of 21. and it being a Trespass that some may be guilty and not others which is true But the Question is not Whether some of the Defendants might have been found guilty and others not but whether as this Verdict is all or none must be Culpable 1. The Iury referr to the Court Si actio praedicta potuit commensari in London then they find all the Defendants culpable And if actio praedicta potuit commensari tantummodo in the County of Gloucester then they find all the Defendants by name Not Culpable So as the matter is Whether this individual Action brought joyntly against all the Defendants might be laid in London For that is the Actio praedicta not whether an Action might be laid in London for the Trespass against any of these Defendants and in that first sense Actio praedicta could not be in London for it could not be there laid as to some of the Defendants 2. Secondly they referr to the Court Whether Actio praedicta which is this Action jointly brought against all the Defendants could only be laid in the County of Gloucester and if so they find for the Defendants to which the Court must answer That this Action so jointly brought could only be laid according to Law ad omnem Juris effectum in the County of Gloucester 3. Thirdly if the Court should be of Opinion That the Action was well laid as to Sir Richard Coxe but not the rest the Iury find not him Guilty and not the rest for they find all equally Guilty or equally not Guilty 4. Fourthly That which differs his Case from the rest is That he was not assistant or aiding to the Constable for he bad that is praecepit or commanded the Constable to put the Plaintiff in Cippis But as to that the ancient Law was both adjudg'd in Parliament and allowed That it was contra consuetudinem Regni that a man should be condemn'd in a Trespass De praecepto or auxilio if no man were convicted of the Fact done It was the Case in Parliament of Bogo de Clare 18 E. 1. John Wallis Clerk entred his House and brought Letters of Citation from the Arch-bishop of Canterbury Some of the Family of Bogo made Wallis eat the said Process and Wax thereto affixed Et imprisonaverunt male tractaverunt For which and the Contempt to the King he brought his Action against Bogo who pleaded That he named no persons in certain nor alledg'd that the Fact was done by his command and demanded Iudgment thereupon and was discharged Notwithstanding by the Kings pleasure for so enormous a Trespass done in Contempt of the Church for the Contempt done within the Verge and in time of Parliament and for the bad Example Bogo was commanded to answer the King of the Trespass done in his House Et per Manupastos Familiares suos and a day given him to produce before the King and his Council those of his Family which was accordingly done but they who were said to have done the Fact were fled Et super hoc idem Bogo perit Judicium si de Praecepto missione vel assensu si sibi imponeretur ad sectam Domini Regis respondere debeat antequam factores principales aliquo modo de facto illo convincantur Whereupon Iudgment was given Et quia per consuetudinem legem Angliae Nullus de praecepto vi auxilio aut missione respondere debeat antequam factores aliquo modo convincantur Consideratum est quod praedictus Bogo ad praesens eat inde sinedie praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad voluntatem suam cum praedicti factores de facto illo fuerint convicti si Dominus Rex versus eum inde loqui voluerit A Iudgment in Parliament at the Kings Suit That it was against the Custome and Law of the Kingdom to convict a man de praecepto auxilio aut missione in a Trespass before some who
meaning can be given to his Covenant Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men where the Lessee hath his proper Remedy against the wrong doer Against this Truth there is one Book that hath or may be pretended which I will cite in the first place because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case Dyer 15 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer Catesby in consideration of a Sum of mony and a Horse made a Lease to Mountford for term of years Et super se assumpsit quod the Plaintiff Mountford pacifice quiete haberet gauderet the Land demis'd durante termino sine evictione interruptione alicujus personae after Catesby's Father entred upon him and so interrupted him whereupon Mountford brought his Action upon this Assumpsit and Catesby pleaded he did not assume and found against him It was moved in Arrest of Judgment for the Defendant That the entry might be wrongful for which the Plaintiff had his Remedy but disallowed and Iudgment affirmed for the Plaintiff because saith the Book it is an express presumption and assumption that the Plaintiff should not be interrupted And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart as being an express Assumption Though the Lord Dyers Case be an Action of the Case upon an Assumpsit and out Case an Action of Covenant yet in the nature of the Obligation there seems no difference but in the form of the Action For to assume that a man shall enjoy his term quietly without interruption and to covenant he shall so enjoy it seems the same undertaking But if the reason of Law differ in an Assumpsit from what it is in a Covenant as seems implyed in Tisdales Case then this Case of the Lord Dyer makes nothing against the Case in question which is upon a Covenant not an Assumpsit Hob. f. 34 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex and declared That Sir William convenit promisit agreavit ad cum praedict Elia quod ipse idem Elias haberet occuparet gauderet certain Lands for Seven years into which he entred and that one Elsing had Ejected him and kept him out ever since Resolv'd because no Title is laid in Elsing he shall be taken to enter wrongfully and the Lessee hath his Remedy against him Therefore adjudg'd for the Defendant Essex Here is a Covenant for enjoying during the term the same with enjoying without interruption for if the enjoyment be interrupted he doth not enjoy during the term the same with enjoying without any interruption the same with enjoying without interruption of any person which is the Lord Dyers Case but here adjudg'd the interruption must be legal or an Action of Covenant will not lye because there is remedy against the Interrupter So is there in the Lord Dyer's Case And a Rule of that Book is That the Law shall never judge that a man Covenants against the wrongful acts of strangers unless the words of the Covenant be full and express to that purpose which they are not in our present Case because the Law defends against wrong Brocking brought an Action upon an Assumpsit against one Cham and declared Brocking versus Cham Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease without the lett interruption or incumbrance of any person and shews in Fact That this Land was extended for Debt due to the King by process out of the Exchequer and so incumbred After Verdict for the Plaintiff it was moved in Arrest of Iudgment That no good breach was assigned because he did not shew that the Incumbrance was a lawful Incumbrance for else he might have his Remedy elsewhere and Iudgment was given for the Defendant This Case was upon an Assumpsit as the Lord Dyers was and by as ample words for the Land was to be enjoyed without any lett which is equivalent to the words of quiete pacifice in the Lord Dyers Case which is a Case in terminis adjudged contrary to that in the Lord Dyer and upon the same reason of Law in an Assumpsit as if it had been a Covenant viz. because the Plaintiff had his Remedy against the wrong doer Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse as Executors of John Mountfitchett Cr. 45 El. f. 914. pl. 4. and declared That the Testator had sold him Nine and twenty Tuns of Copras and agreed That if the Testator faild of payment of a certain Sum of mony upon a day certain That the Plaintiff might quietly have and enjoy the said Copras that the money was not paid at the day and that he could not have and enjoy the said Nine and twenty Tuns of Copras Iudgment was given by Nihil dicit against the Defendants and upon a Writ of Enquiry of Damages 260 l. Damages given Vpon motion in Arrest of Iudgment It was resolved by the whole Court That the breach of Covenant was not well assign'd because no lawful disturbance was alledg'd and if he were illegally hindred or disturbed of having the Copras which he had bought he had sufficient remedy against the wrong doers Dod was bound in an Obligation to Hammond conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleaded the Surrender and that the Plaintiff entred and might have enjoyed the Lands To which the Plaintiff replyed That after his Entry one Gay entred upon him and outed him It was adjudg'd the Replication was naught because he did not shew that he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer This was in an Action of Debt upon a Bond condition'd for quiet enjoyment So as neither upon Covenant upon Assumpsit or Bond condition'd for quiet enjoying unless the breach be assign'd for a lawful Entry or Eviction and upon the same reason of Law because the lessee may have his Remedy against the wrong doers an Action of Covenant cannot be maintain'd Cok. 4 Rep. Nokes's Case To these may be added a Resolution in Nokes his Case in the fourth Report where a man was bound by Covenant in Law That his Lessee should enjoy his term and gave Bond for performance of Covenants in an Action of Debt brought upon the Bond the breach was assign'd in that a stranger had recover'd the Land leas'd in an Ejectione firmae and had Execution though this Eviction were by course of law yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had
them in Civil Tryals And how the Iury should in any other manner according to the course of Tryals us'd find against the direction of the Court in matter of Law is really not conceptible True it is if it fall out upon some special Tryal that the Iury being ready to give their Verdict and before it is given the Iudge shall ask whether they find such a particular thing propounded by him or whether they find the matter of Fact to be as such a Witness or Witnesses have depos'd and the Iury answer they find the matter of Fact to be so if then the Iudge shall declare The matter of Fact being by you so found to be the Law is for the Plaintiff and you are to find accordingly for him If notwithstanding they find for the Defendant this may be thought a finding in matter of Law against the direction of the Court for in that case the Iury first declare the Fact as it is found by themselves to which Fact the Iudge declares how the Law is consequent And this is ordinary when the Iury find unexpectedly for the Plaintiff or Defendant the Iudge will ask How do you find such a Fact in particular and upon their answer he will say then it is for the Defendant though they found for the Plaintiff or è contrario and thereupon they rectifie their Verdict And in these Cases the Iury and not the Iudge resolve and find what the Fact is Therefore alwaies in discreet and lawful assistance of the Iury the Iudge his direction is Hypothetical and upon supposition and not positive and upon coercion viz. If you find the Fact thus leaving it to them what to find then you are to find for the Plaintiff but if you find the Fact thus then it is for the Defendant But in the Case propounded by me where it is possible in that special manner the Iury may find against the Direction of the Court in matter of Law it will not follow they are therefore finable for if an Attaint will lye upon the Verdict so given by them they ought not to be fined and imprisoned by the Judge for that Verdict for all the Iudges have agreed upon a full conference at Serjeants Inn in this case And it was formerly so agreed by the then Judges in a Case where Justice Hide had fined a Jury at Oxford for finding against their Evidence in a Civil Cause That a Jury is not finable for going against their Evidence where an Attaint lies for if an Attaint be brought upon that Verdict it may be affirmed and found upon the Attaint a true Verdict and the same Verdict cannot be a false Verdict and therefore the Jury fined for it as such by the Judge and yet no false Verdict because affirmed upon the Attaint Another Reason that the Jury may not be fined in such case is because until a Jury have consummated their Verdict which is not done until they find for the Plaintiff or Defendant and that also be entred of Record they have time still of deliberation and whatsoever they have answered the Judge upon an interlocutory Question or Discourse they may lawfully vary from it if they find cause and are not thereby concluded Whence it follows upon this last Reason That upon Tryals wherein no Attaint lies as well as upon such where it doth no case can be invented wherein it can be maintained that a Jury can find in matter of Law nakedly against the direction of the Judge And the Judges were as before all of Opinion That the Retorn in this latter part of it is also insufficient as in the former and so wholly insufficient But that this Question may not hereafter revive if possible It is evident by several Resolutions of all the Judges That where an Attaint lies the Judge cannot fine the Jury for going against their Evidence or Direction of the Court without other Misdemeanour For in such case finding against or following the direction of the Court barely will not barr an Attaint but in some case the Judge being demanded by and declaring to the Jury what is the Law though he declares it erroneously Ingersalls C. Cr. 35 El. f. 309. n. 18. and they find accordingly this may excuse the Jury from the Forfeitures for though their Verdict be false yet it is not corrupt but the Iudgment is to be revers'd however upon the Attaint for a man loseth not his right by the Judges mistake in the Law Therefore if an Attaint lies for a false Verdict upon Indictment not Capital as this is either by the Common or Statute Law by those Resolutions the Court would not fine the Jury in this case for going against Evidence because an Attaint lay But admitting an Attaint did not lye as I think the Law clear it did not for there is no Case in all the Law of such an Attaint nor Opinion but that of Thirnings 10 H. 4. Attaint 60. 64. for which there is no warrant in Law though there be other specious Authority against it toucht by none that argued this Case The Question then will be Whether before the several Acts of Parliament which granted Attaints and are enumerated in their order in the Register Reg. f. 122. a. the Judge by the Common Law in all Cases might have fined the Jury finding against their Evidence and direction of the Court where no Attaint did lye or could so do yet if the Statutes which gave the Attaints were repeal'd If he could not in Civil Causes before Attaints granted in them he could not in Criminal Causes upon Indictment wherein I have admitted Attaint lies not for the fault in both was the same viz. finding against Evidence and Direction of the Court and by the Common Law the Reason being the same in both the Law is the same That the Court could not Fine a Jury at the Common Law where Attaint did not lye for where it did is agreed he could not I think to be the clearest position that ever I consider'd either for Authority or Reason of Law After Attaints were granted by Statutes generally As by Westminster the First c. 38. in Pleas Real and by 34 E. 3. c. 7. in Pleas Personal and where they did lye at Common Law which was only in Writs of Assise The Examples are frequent in our Books of punishing Jurors by Attaint But no Case can be offer'd either before Attaints granted in general or after That ever a Jury was punish't by Fin◠and Imprisonment by the Judge for not finding according to their Evidence and his Directtion until Popham's time nor is there clear proof that he ever fined them for that Reason separated from other Misdemeanor If Juries might be fined in such Case before Attaints granted why not since for no Statute hath taken that power from the Judge But since Attaints granted the Judges resolved they cannot Fine where the Attaint lies therefore they could not Fine before Sure this latter Age did
the matter proceeded upon in such Courts might as well be prosecuted in the Common Bench But if a priviledg'd person in Banco were sued in the Ecclesiastical Courts or before the High Commission or Constable and Marshal for things whereof the Common Pleas had no Conuzance they could not Supersede that proceeding by Priviledge And this was the ancient reason and course of Priviledge 1. Another way of Priviledge by reason of Suit depending in A Superiour Court is when a person impleading or impleaded as in the Common Bench is after arrested in a Civil Action or Plaint in London or elsewhere and by Habeas Corpus is brought to the Common Pleas and the Arrest and Cause retorn'd if it appear to the Court That the Arrest in London was after the party ought to have had the Priviledge of the Common Pleas he shall have his Priviledg allow'd and be discharg'd of his Arrest and the party left to prosecute his cause of Action in London in the Common Pleas if he will 2. If the cause of the Imprisonment retorn'd be a lawful cause but which cannot be prosecuted in the Common Pleas as Felony Treason or some cause wherein the High Commission Admiralty or other Court had power to imprison lawfully then the party imprison'd which did implead or was impleaded in the Common Bench before such imprisonment shall not be allow'd Priviledge but ought to be remanded 3. The third way is when a man is brought by Habeas Corpus to the Court and upon retorn of it it appears to the Court That he was against Law imprison'd and detain'd though there be no cause of Priviledge for him in this Court he shall never be by the Act of the Court remanded to his unlawful imprisonment for then the Court should do an act of Injustice in imprisoning him de novo against Law whereas the great Charter is Quod nullus liber homo imprisonetur nisi per legem terrae This is the present case and this was the case upon all the Presidents produc'd and many more that might be produc'd where upon Habeas Corpus many have been discharg'd and bail'd though there was no cause of Priviledge in the Case This appears plainly by many old Books if the Reason of them be rightly taken For insufficient causes are as no causes retorn'd and to send a man back to Prison for no cause retorn'd seems unworthy of a Court. 9 H. 6. 54. 58. Br. n. 5. 14 H. 7. f. 6. n. 19. 9 E. 4. 47. n. 24. 12 H. 4. f. 21. n. 11. Br. If a man be impleaded by Writ in the Common Pleas and is after arrested in London upon a Plaint there upon a Habeas Corpus he shall have Priviledge in the Common Pleas if the Writ upon which he is impleaded bear date before the Arrest in London and be retorn'd although the Plaintiff in the Common Pleas be Nonsuit essoin'd or will not appear and consequently the Case of Priviledge at an end before the Corpus cum causa retorn'd but if the first Writ be not retorn'd there is no Record in Court that there is such a Defendant The like where a man brought Debt in Banco and after for the same Debt arrested the Defendant in London and became Nonsuit in Banco yet the Defendant upon a Habeas Corpus had his Priviledge because he had cause of Priviledge at the time of the Arrest 14 H. 7. 6. Br. Priviledge n. 19. The like Case 9 E. 4. where a man appear'd in Banco by a Cepi Corpus and found Mainprise and had a day to appear in Court and before his day was arrested in London and brought a Corpus cum causa in Banco Regis at which day the Plaintiff became Nonsuit yet he was discharg'd from the Serjeant at London because his Arrest there was after his Arrest in Banco and consequently unlawful 9 E. 4. f. 47. Br. Priviledge 24. and a man cannot be imprison'd at the same time lawfully in two Courts Coke Mag. Chart. f. 53 55. The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus unless in case of Priviledge for the Chancery may do it without question And the same Book is That the Common Pleas or Exchequer may do it if upon Retorn of the Habeas Corpus it appear the Imprisonment is against Law An Habeas Corpus may be had out of the Kings Bench or Chancery though there be no Priviledge Mic. C. 2. Coke f. 55. c. or in the Court of Common Pleas or Exchequer for any Officer or priviledg'd Person there upon which Writ the Gaoler must Retorn by whom he was committed and the cause of his Imprisonment and if it appeareth that his Imprisonment be just and lawful he shall be remanded to the former Gaoler but if it shall appear to the Court that he was imprisoned against the Law of the Land they ought by force of this Statute to deliver him if it be doubtful and under consideration he may be bayl'd The Kings Bench may bayl if they please in all cases but the Common Bench must remand if the cause of the Imprisonment retorn'd be just The Writ de homine replegiando is as well retornable in the Common Pleas as in the Kings Bench. All Prohibitions for incroaching Iurisdiction Issue as well out of the Common Pleas as Kings Bench. Quashing the Order of Commitment upon a Certiorari which the Kings Bench may do but not the Common Pleas is not material in this Case 1. The Prisoner is to be discharg'd or remanded barely upon the Retorn and nothing else whether in the Kings Bench or Common Pleas. 2. Should the Kings Bench have the Order of Commitment certified and quash'd before the Retorn of the Habeas Corpus or after what will it avail the Prisoners they cannot plead Nul tiel Record in the one case or the other 3. In all the Presidents shew'd in the Common Pleas or in any that can be shew'd in the King's Bench upon discharging the Prisoner by Habeas Corpus nothing can be shew'd of quashing the Orders or Decrees of that Court that made the wrong Commitment Glanvill's C. Moore f. 836. 4. It is manifest where the Kings Bench hath upon Habeas Corpus discharg'd a Prisoner committed by the Chancery the person hath been again re-committed for the same Cause by the Chancery and re-deliver'd by the Kings Bench but no quashing of the Chancery Order for Commitment ever heard of 5. In such Cases of re-commitment the party hath other and proper remedy besides a new Habeas Corpus of which I shall not speak now 6. It is known That if a man recover in Assise and after in a Re-disseisin if the first Iudgment be revers'd in the Assise the Iudgment in the Re-disseisin is also revers'd So if a man recover in Waste and Damages given for which Debt is brought especially if the first Iudgment be revers'd before Execution it destroys the Process
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
Whether the Temporal Courts of the King can take Conizance in general that it is not an Incestuous marriage by the Act of 32 H. 8. and consequently prohibit the questioning of it in the Ecclesiastical Courts Because the words of that Act are That no marriage shall be impeached Gods Law except without the Levitical Degrees and therefore within the meaning of that Act Some marriages might be impeach'd according to Gods Law though such marriage were out of the Levitical Degrees whereof this may be one As to the first Question The marriage of Harrison and Jane Resp 1 his wife is a lawful marriage by the Act of 32 H. 8. cap. 38. As to the Second I hold the Judges of the Temporal Courts Resp 2 have by that and other Acts of Parliament full Conizance of marriages within or without the Levitical Degrees As to the Third I hold that as the Law stands at this time Resp 3 the Kings Temporal Courts at Westminster have full Conizance what marriages are incestuous or not according to the Law of the Kingdom and may prohibit the Ecclesiastick Courts from questioning marriages as Incestuous which the said Courts in their Iudgment shall conceive not to be so Yet I shall agree the Ecclesiastick Courts may proceed in order to Divorcement and punishment concerning divers marriages and the Kings Courts at Westminster ought not to prohibit them though such marriages be wholly without the Levitical Degrees I shall begin in some measure first to clear the Second Question viz. Whether the Kings Temporal Courts have any Conizance of the Subject matter namely what marriages are within or without the Levitical Degrees Questions of that nature being as must be confessed regularly to be decided by the Law Divine whereof the Ecclesiastick Courts have generally the Conizance For it were improper for us to resolve a Question in a Law when it was left to an after Inquiry whether we had any Conizance of or skill in that Law by which the Question was to be determined There was a time when the Temporal Courts had no Conizance of lawful or unlawful marriages so was there a time when the Ecclesiastical Courts had no Conizance of matters Testamentary and probat of Wills Hensloes C. 9. Rep. but the Law-making power of the Kingdom gave them that which they had not before and the same hath given the Temporal Courts this now which they had not in former times By Conizance in this sense I intend Jurisdiction and Judicial Power as far as it extends concerning the lawfulness of marriages which an Act of Parliament hath given them Notwithstanding it will be said They want knowledge or skill in the Law by which it must be determined what are or are not the Levitical Degrees for they are not studied in that Divine Law they want skill in the Original in which it was written and in the History by which it is to be interpreted As specious as this seems it is a very empty Objection for no man is supposed necessarily ignorant of a Law which he is bound to observe It is irrational to suppose men necessarily ignorant of those Laws for breach of which they are to be punisht and therefore no Canon of Divine or Human Law ought to be supposed unknown to them who must be punisht for transgressing them We are obliged not to marry in the prohibited Degrees not to be Heretical or the like therefore we are supposed to know both Nor is it an Exception to disable a man of having any Church Dignity whatever that he is not knowing in the Hebrew or Greek Tongue All States receive the Scriptures in that Language wherein the several States think fit to publish them for common use and it is but very lately that the Christian Churches have become knowing in the Original Tongues wherein the Scriptures were written which is not a knowledge of obligation and required in all or any but acknowledged accidental and enjoy'd by some If it were enacted by Parliament That matters of Inheritance of Theft and Murther should be determined in the Courts of Westminster according to the Laws of Moses this Objection would not stand in the way no more can it in this particular concerning Incestuous marriages The Laws of one people have frequently been transferred over and become the Laws of another As those of the Twelve Tables from Greece to Rome in like manner those Laws of the Rhodians for Maritime Affairs made the Law of the Romans the Laws of England into Ireland and many such might be instanced As another lymn of this Objection it is said This Act 13 H. 8. seems rather a directing Act how the Courts Ecclesiastical should proceed touching marriages out of the Levitical Degrees than an Act impowering the Temporal Courts to prohibit their proceeding When the King's Laws prohibit any thing to be done there are regular ways to punish the Offender As for common Offences by Indictment or Information Erronious Judgments are remedied by Writs of Error or Appeal Incroaching Jurisdiction by Courts where no Writ of Error lies is corrected by the King's Writs of Prohibitions It is most proper for the King to hinder the violating of his Laws by impeaching of marriages which the Law will not have impeach'd by incroaching Iurisdiction as to hinder them from impeaching or drawing into question Contracts for Lands or other things whereof they have not Conizance And the King hath never otherwise remedied that fault against his Laws but by his Prohibitions out of his Courts of Iustice Nor is it consonant to Law or common Reason That they who offend by incroaching Jurisdiction against Law should be the redress allowed by Law only against such incroachment which were to provide against doing wrong by him who doth it By the Act no person of what estate or condition soever Rep. 1 2. p.m. but that was Rep. again 1 El. c. 1. is to be admitted to any of the Spiriual Courts and to any Process Plea or Allegation contrary to the Act. This Act therefore never intended the Ecclesiastick Courts should have any Judicial power to determine or judge what marriages were within or without the Levitical Degrees contrary or not contrary to the Act when it admits not any Process Plea or Allegation in a Spiritual Court contrary to the Act. For it is impossible that Court should have Conizance to determine the lawfulness or unlawfulness of a marriage which is forbid to admit Process Plea or Allegation against such marriage if it be lawful 1. This marriage not prohibited in the 18. of Leviticus nor the same degree with any there prohibited 2. If marriages neither prohibited in terminis in Leviticus nor being in the same degree with a marriage there prohibited should be unlawful there would be no stop or terminus of unlawful marriages 3. The 20. of Leviticus prohibits no other marriages than the 18. of Leviticus doth but appoints the punishments which the Eighteenth doth not 4. Not now to
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
retail or in gross to their best advantage in their houses or elsewhere Non obstante the Statute of 7 E. 6. They find the Act of 12 Car. 2. c. 25. and the confirmation of it concerning the giving Licences to retail Wine and the Proviso therein prout Provided also That this Act or any thing therein contained shall not extend or be prejudicial to the Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London or to any other City or Town Corporate but that they may use and enjoy such Liberties and Priviledges as heretofore they have lawfully used and enjoyed They find That the Master Wardens Freemen and Commonalty of the Mystery of Vintners in the City of London was an ancient Corporation of the said City of London at the time of the Act of 12 Car. 2. and incorporated by the Name of Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London They find That the Defendant three years before and during all the time in the Information used the Trade of retailing of Wine and kept a Tavern in the Parish of Stepney in the County of Middlesex was an Inhabitant there and that the Defendants house in which the said Wine was sold is within two miles of the City of London They find That the Defendant within the time in the Information mentioned did sell Ten pints of Sack as in the Information mentioned to be drunk and spent in his said dwelling house being a Tavern in the said Parish of Stepney They find That at the time of the sale of the said Wine and three years before the Defendant was a natural born Subject of the King and a Freeman of the City of London of the said Company of Vintners Si pro quer quoad 50 l. pro quer Si pro Def. pro Def. 1 s. Vpon this Special Verdict three Questions have been raised 1. Whether the Patent of 9 Jac. was not void in its Creation 2. Admitting it was not void in its Creation Whether it became void by the death of King James 3. If it were a good Patent in the Creation nor was void by the death of King James Whether the Proviso in the Act of 12 Car. 2. Saving all the Right of the Master Wardens Freemen and Commonalty of Vintners in the City of London hath preserved all that Right which they had by the Patent of 9 Jac. against the Act of 12 Car. 2 1. I conceive That if the Patent 9 Jac. were not void in the Creation it remained good after the death of King James 2. If it were not void in the Creation nor by the death of King James all Right that the Master Wardens Freemen and Commonalty of Vintners had by it is still preserved by the Proviso in the Act of 12 Car. 2. but if the Patent of 9 Jac. was void in its Creation or by the death of King James then the Proviso in the Act of 12 Car. 2. aids them not at all So as now it is only insisted on That the Patent of 9 Jac. was void in its Creation for two Reasons 1. For that the Law of 7 E. 6. was such a Law pro bono publico as the King could not dispence against it more than with some other penal Laws pro bono publico 2. If he could to particular persons he could not to the Corporation of Vintners and their Successors whose number or persons the King could never know and that it stood not with the trust reposed in him by the Law to dispense so generally without any prospect of number or persons The Books have been plentifully urg'd at the Barr and by my Brothers who argued before me therefore I shall not Actum agere to repeat them But I observed not that any steddy Rule hath been drawn from the Cases cited to guid a mans Judgment where the King may or may not dispence in penal Laws excepting that old Rule taken from the Case of 11 H. 7. 11 H. 7. f. 11 12. That with Malum prohibitum by Stat. the King may dispence but not with Malum per se But I think that Rule hath more confounded mens Iudgments on that subject than rectified them Yet I conceive that Case and the Instances given in it rightly understood to be the best key afforded by our Books to open this dark Learning as it seems to me of Dispensations to which therefore I shall only or principally apply my self Before I enter upon it I must previously assent That every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do And so all the Schoolmen agree That Actus qua actus non est malus Rom. 4.15 And that mens acts are good or bad only as they are precepted or prohibited by a Law according to that Truth Where there is no law there is no transgression Whence it follows That every Malum is in truth a Malum prohibitum by some Law In the next place I mean by the word Dispensation when I use it another thing than some of my Brothers defined it to be namely That it was Liberatio à poena or as others That it is provida relaxatio Juris which is defining an ignotum per ignotius but liberare à poena is the proper effect of a pardon not of a dispensation For a dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it upon which depends the true reason of many Cases which admit not of dispensation but a pardon frees from the punishment due for a thing unlawfully done Yet freedom from punishment is a consequent of a dispensation though not its effect But so it is also a consequent of repealing the Law and a consequent of an exception at the making of the Law of some particular person or persons from being bound by the Law I come now to the Case it self of 11 H. 7. wherein I agree That with Malum prohibitum by Stat. indefinitely understood the King may dispense But I deny that the King can dispense with every Malum prohibitum by Statute though prohibited by Statute only 1. The King may pardon Nusances that are transient and not continuing as a Nusance in the High-way which still continues and is not ended until removed cannot be pardon'd So of a Water-course diverted or a Bridge broken down Cok. Pla. Coron f. 237. they cannot be pardon'd so as to acquit the Nusance-maker for committing them but the fine or punishment impos'd for the doing may be pardon'd But breaking the Assise of Bread and Ale forestalling the Markets ingrossing regrating or the like which continue not but which are over assoon as done until done de novo again may be pardon'd like other offences So as the Offender shall not be impleaded for them otherwise than by persons who have receiv'd particular damage which the King cannot remit
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
ratione be tryed in the County next adjoyning whereof there is no Vestigium for the one or the other nor sorts it any way with the rule of the Law 2. This Ordinance of Parliament extended not to all Wales but only to the Lordships Marchers there nor any way comprehended the ancient Shires of Wales or Body of the Principality to which the Ordinance of the Statute of Rutland only extended For Lordships Marchers were out of the Shires as appears by Statute 27 H. 8. 3. It appears by the Case that Gower was not within any County at that time Another Case to the same purpose is in Fitz herbert Fitz. Jurisdiction 13 E. 3. pl. 23. Title Jurisdiction and not in any other Reports 13 E. 3. in a Writ of Cosenage the Demand was of Castle of K. and Commot of J. the Defendant pleaded the Castle and Commot were in Wales where the King 's Writ runs not and it was said that the word was not intelligible in the Courts of England and Judgment was prayed if the Court would take Conizance To give the Court Jurisdiction it was urged pressingly 1. That they had given the Court Jurisdiction by alledging the Court knew not what was meant by Commot which the Court was to determine whether it did or not Therefore Jurisdiction was admitted therein 2. Parning pressed they had demanded the view which gave the Court Jurisdiction 3. For that the Original was directed to the Sheriff of Hereford who by his Retorn had testified the Summons and the Tenant had appeared and so affirmed the Summons 4. For that the view was had Notwithstanding all which to give the Court Jurisdiction it was said to Parning He must say more before the Court would have Jurisdiction Which evidently proves that the Court had no Jurisdiction generally of Land in Wales as I observed from the former Case And no act of the party gives Jurisdiction to the Court by elapsing his time to plead to the Jurisdiction if it appear by the Record the Court hath no Jurisdiction as in this Case it did Then Woodstock said Though the Castle and Commot were in Wales the Court ought not to be outed of Jurisdiction for by Commot a great Signiory was demanded consisting of Lands Rents and Services and that the Castle and Commot were held in Capite of the King as of his Crown and said those so held were to be impleaded here and not elsewhere 7 H. 6. f. 36. b. so is 7 H. 6. f. 36. b. And said the King by his Charter had granted the Castle and Commot to the Tenant in tayl and thereupon pray'd aid of the King and it was granted hereupon But before this was shew'd and that it was a great Signiory and held of the King in Capite by which it was no part of the Principality nor held under it the Court would own no Jurisdiction but when that appeared the Case was the same with the former in 18 E. 2. and the Defendant had no remedy but in the Kings Courts This Case was cited by Sir Edward Coke in the Case before cited 11 Jacobi concerning the Sheriff of Radnor but the difference not observ'd of its being a Lordship in Wales held immediately of the King in Capite nor that the Court owned no Jurisdictions generally concerning Lands in Wales by the Summons and view of the next adjoyning Sheriff William de Cosington and Elizabeth his Wife brought a Writ of Dower of the third part of the Land in Gower against the Earl of Warwick as Tenant and the Writ was Quod reddat ei rationabilem dotem de libero tenemento quod fuit Jo. Moubray quondam viri sui in terra de Gowre in Wallia It appears not in the Case to what Sheriff the Writ was directed though this Case be in the Book at large but it appears that those of the Chancery and the Judges of the Kings Bench had been consulted with concerning the Writ in bringing it for Dower in terra de Gower in Wallia therefore it must issue from the High Court of Chancery and must be directed consequently to the Sheriff of Glocester as the Assise was in 18 E. 2. Br. abridging this Case saith The Action was against the Earl of Warwick as being Lord of the intire Signiory of Gower and then he was to be impleaded by Writ out of the Chancery here equally and upon the same reason for a third part of the Signiory as for the whole according to the Case of 18 E. 2. first cited for the Lord could no more make a Precipe to summon himself to his own Minister or to make Execution against himself for a third part of the Royalty than for the whole And therefore the Ordinance of Parliament then mentioned equally extended to this Case as to that of 18 E. 2. This is not strange that Acts of Parliament are lost sometimes Note the Act of 3 E. 1. by which old Customes were granted not extant but clear proofs of it remain These three last Cases therefore wherein the Tenants were impleaded in the Courts here for Land in Wales and Summons and Execution made by the Sheriff of the next adjoyning County are well warranted by an Act of Parliament not extant being for either the Lordships Marchers themselves or some part of them and against the Lord himself as that Case of 18 E. 2. expresly resolves All these were real Actions The first an Assise of Novel Disseisin the second a Writ of Cosenage the third a Writ of Dower The like Case is cited 19 H. 6. 19 H. 6. f. 12. A. That when the Mannor of Abergavenny was demanded the Writ was directed to the Sheriff of Hereford as Newton urged for this was a Lordship Marcher and held of the King in Capite as appears by Moore 's Reports in Cornwals Case in that the Barony of Abergavenny was held by the Lord Hastings of the King in Capite to defend it at his charge ad utilitatem Domini Regis Exactly agreeing with this Doctrine is the Book of 21 H. 7. f. 33. b. if a Signiory in Wales be to be tryed 21 H. 7. f. 33. B. it shall be tryed here by the Course of the Common Law but if Lands be held of a Signiory in Wales it shall be tryed within the Mannor and not elsewhere As for that expression by the Course of the Common Law 19 H. 6. f. 12. A. it is also in the Book 19 H. 6. that Deeds and all other things alledged in Wales shall be tryed in the adjoyning Countries at the Common Law otherwise there would be a failer of Right And of this opinion seemed most of the Iustices arguendo obiter the Case before them not concerning Wales but the County Palatine of Lancaster Of Churches in Wales a Quare Impedit shall be brought in England yet the Land and other things in Wales 30 H. 6. f. 6. B. shall be determined before the Stewards of
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
in any place where he is as long as the Debt is unsatisfied 92 3. It is the Defendant not the Plaintiff must take Exceptions to the Jurisdiction of the Court 93 4. Where the appearance of the Tenant upon the Summons shall not affirm the Jurisdiction of the Court 405 5. The Temporal Courts may prohibit the Spiritual Courts in Cases of incestuous Marriages and Marriages within or without the Levitical Degrees 207 Iurors See Verdict Attaint 1. Jurors must be returned out of the Vicinage where the cause of Action ariseth 148 2. What is the legal Verdict of the Jury 150 3. No evidence can be given to a Jury of what is Law 143 4. The Verdict of the Jury cannot change the Reason of the Law 101 5. The Jury and not the Judge resolve and find what the Fact is 144 6. A Jury-man swears to what he can infer and conclude from the Testimony of Witnesses by the act and force of his Understanding to be the Fact inquired after 142 7. The Jury may have Evidence from their own personal knowledge 147 8. Although a Jury find contrary to their Evidence yet they are not finable an Attaint only lies against them 144 145 147 148 149 9. Neither are they fineable where an Attaint doth not lye 145 10. A Juror kept his Fellows a day and night without any reason for assenting and therefore sent to the Fleet 151 11. A Jury was never punisht upon an Information either in Law or the Star Chamber for finding an untrue Verdict unless Imbracery Subornation or the like were joyned 152 12. Where the Judges conceive the Jury have been unlawfully dealt withal to give their Verdict they are finable 153 13. The Jury can never find Ignoramus upon a Tryal 154 King See Grants of the King Prerogative 1. No Canon Ecclesiastical can be made without the Kings license and assent 329 2. The King will not take away another mans Right against his Will 14 3. The King cannot pardon an Offence done to a particular person 333 4. Where the Suit is only the Kings for the breach of a penal Law and which is not to the damage of a third person the King may dispense 334 336 5. But where the Suit is the Kings only for the benefit of a third person and the King is entituled by the prosecution and complaint of such third person the King cannot release or dispense with such Suit without the Agreement of such party concerned 334 336 356 6. If a Title appear for the King the Court Ex officio ought to give Judgment for him though no party 299 7. Where the Offence wrongs none but the King he may dispense with it 344 8. What things the King may pardon but not dispense with 333 334 336 c. 9. Offences against penal Laws not to be dispensed with 333 334 342 c. 10. Where the King may dispense generally he is not bound to it but may limit his Dispensation if he think fit 346 11. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 12. If the Kings Grant is not void in its Creation it remains good after his death against his Successor 332 13. Where the exercise of a Trade is generally prohibited the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 14. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 15. Where in a Quare Impedit brought by the King his Title appears to be but a bare Suggestion he cannot forsake his own Title and endeavour to destroy the Defendants 61 16. Where the King presents by Lapse and hath then other good Title to present yet it is void 14 17. Those under the Kings power as King of England in another Princes Dominions are under his Laws 282 18. The Natives of any of the Kings Forreign Plantations are his Majesties Natural Subjects and shall inherit in England 268 in loco 278 279 Kings Bench See Courts 1. The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus unless in case of priviledge for the Chancery may likewise do it 157 2. Upon the Return of Habeas Corpus the Kings Bench may if they please bayl the prisoner but the Common Pleas must remand him if the cause of the imprisonment returned is just 157 3. The Kings Bench may quash the Order of Commitment upon a Certiorari 157 4. May grant Prohibitions for encroaching Jurisdiction ibid. Lapse 1. PResentation by Lapse makes no severance of the Advowson 14 2. Where a man accepts a second Benefice with Cure without a Dispensation or Qualification the first Benefice is void and the Patron may present but if he doth not present then if it is under value no Lapse shall incur until there is a Deprivation and Notice But if it is above value then the Patron must present within six months 131 132 Law See Construction of Law 1. When a Law is given to any people it is necessary that it be conceived and published in words which may be understood for without that it cannot be obeyed and the Law which cannot be obeyed is no Law 305 2. The meaning of the words in any Law are to be known either from their use and signification according to common acceptation before the Law made or from some Law or Institution declaring their signification 305 3. A Law which a man cannot obey nor act according to is void and no Law 337 4. To do a thing which no Law can make lawful is malum in se 337 5. Where the Law is known and clear though it be unequitable and inconvenient yet Judges must determine as it is without regarding the unequitableness or inconveniences 37 6. Where the Law is doubtful and not clear the Judges ought to interpret it as is most consonant to equity 38 7. Defects in the Law can be remedied only in Parliament 38 116 132 8. Whatever is declared by Act of Parliament to be against Gods Law must be so admitted to be by us because it is so declared by an Act of Parliament 327 9. A Law not published is no more obligative then a Law only concealed in the mind of the Law-giver is obligative 228 236 10. A lawful Canon is the Law of the Kingdom as well as an Act of Parliament and whatever is the Law of the Kingdom is as much the Law as any thing else that is so 21 132 327 11. It is irrational to suppose men ignorant of those Laws for the breach of which they are to be punisht 208 12. Every thing in one sense is taken for Common Law if it be Law when it appears not to be by Act of Parliament 163 13. It is never prudent to change a Law which cannot be bettered in the Subject
whole Record but to say That in such a Court such a Judgment was obtained 92 10. In pleading of a Judgment it may be as well pleaded quod recuperaret as recuperet 93 11. An erroneous Judgment is a good barr until reversed by Error 94 12. How a Recognizance or Statute ought to be pleaded 102 13. Every Defendant in a Quare Impedit may plead Ne disturba pas 58 14. The pleading of a Seisin in gross Appendancy and Presentation in a Quare Impedit 15 15. The Tenant shall never be received to Counter-plead but he must make to himself by his plea a Title to the Land and so avoid the plaintiffs Title alledged by a Traverse 58 16. A Commoner prescribes for Common for Cattel levant and couchant antiquo Messuagio which is not good because Cattel cannot to a common intent be levant upon a Messuage only 152 153 17. See the form of pleading a Custome to have solam separalem pasturam for the Tenant against the Lord 252 253 18. The pleading of per nomen in a Grant and how it shall be taken 174 175 Pluralities See Title Statute 14 22. 1. If a man have a Benefice with Cure whatever the value is and is admitted and instituted into another Benefice with Cure having no Qualification or Dispensation the first Benefice is void and the Patron may present 131 Pope 1. The Pope could not change the Law of the Land 20 2. He could formerly grant a Dispensation for a plurality 20 23 24 3. He did formerly grant Faculties Dispensations for Pluralities Unions Appropriations Commendams c. 23 Prerogative See King 1. By the Common Law all Wrecks did belong to the King 164 2. The extent of the Kings Prerogative is the extent of his power and the extent of his power is to do what he hath a will to do according to that Ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest 357 3. The King may take Issue and afterwards Demurr or first Demurr and afterwards take Issue Or he may vary his Declaration but all this must be done in one Term 65 4. He may choose whether he will maintain the Office or traverse the Title of the party and so take traverse upon traverse 62 64 Prebend and Prebendary 1. What a Prebendary or Rectory is in the eye of the Law 197 2. A Prebend or Church-man cannot make a Lease of their Possessions in the right of the Church without Deed 197 Prescription See Modus Decimandi Custome 1. What Prescriptions for Commons are good and what not 257 2. How Copyholders shall prescribe for Common 254 3. The Tenant a Commoner prescribes against his Lord to have Solam separalem pasturam this is a void prescription 354 355 356 4. Inhabitants not Corporate cannot prescribe in a Common 254 5. One Commoner may prescribe to have Solam separalem pasturam against another Commoner 255 Presentation See Advowson Ordinary Parson Quare Impedit 1. In a Quare Impedit the Plaintiff must alledge a presentation in himself or in those under whom he claims 7 8 57 2. So likewise must the Defendant ibid. 8 3. What a bare presentation is 11 4. A void presentation makes no usurpation 14 5. When the presentation shall make an usurpation ibid. 6. Where the King presents by Lapse without Title and yet hath other good Title the presentation is void ibid. 7. Where a Parson is chosen a Bishop his Benefices are all void and the King shall present 19 20 21 8. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without notice and where not 131 Presidents 1. An extrajudicial Opinion given in or out of Court is no good president 382 2. Presidents without a Judicial decision upon Argument are of no moment 419 3. An Opinion given in Court if not necessary to the Judgment given of Record is no Judicial Opinion nor more than a gratis dictum 382 4. But an Opinion though erroneous to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 5. Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas are not to be regarded 399 6. New presidents are not considerable 169 7. Presidents are useful to decide Questions but in Cases which depend upon fundamental principles from which demonstrations may be drawn millions of Presidents are to no purpose 419 8. Long usage is a just medium to expound an Act of Parliament 169 Privity See Estate 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and Distrained 39 2. Such privity is created by Attornment ibid. 3. Where a new Estate is gained the privity of the old Estate is lost 43 4. Where it is not lost between Grantor and Grantee of a Rent after a Fine levied by the Grantee to his own use ibid. 5. Where an Estate in a Rent may be altered and no new Attornment or privity requisite 144 Priviledge 1. Priviledge lies only where a man is an Officer of the Court or hath a prior Suit depending in the Common Pleas and is elsewhere molested that he cannot attend it 154 2. All Officers Clerks Attorneys of the Common Pleas and their Menial Servants shall have their Writ of Priviledge 155 Process 1. No Process shall issue from hence into Wales but only Process of Outlawry and Extent 396 397 2. A Fieri Facias Capias ad satisfaciendum or other Judicial Process shall not go from hence thither 397 3. Process in Wales differ from Process in England 400 Prohibition See Title Marriage 1. Prohibitions for encroaching Jurisdiction are as well grantable in the Common Pleas as Kings Bench 157 209 2. A man was sued in the Spiritual Court for having married with his Fathers brothers wife and a Prohibition was granted 206 207 c. 3. The Judges have full conizance of Marriages within or without the Levitical Degrees 207 220 4. They have conizance of what Marriages are incestuous and what not and may prohibit the Spiritual Court from questioning of them ibid. 5. How the suggestion upon the Statute of 32 H. 8. concerning Marriages must be drawn to bring the matter in question 247 Proof See Witnesses Evidence 1. A witness shall be admitted to prove the Contents of a Deed or Will 77 Property 1. In Life Liberty and Estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer 337 2. To violate mens properties is never lawful but a malum in se 338 3. But to alter or transfer mens properties is no malum in se ibid. Proviso 1. A power is granted to make Leases of Lands